[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Rules and Regulations]
[Pages 29331-29338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08874]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2016-0137; FRL-10008-15-Region 5]


Designation of Areas for Air Quality Planning Purposes; Indiana; 
Redesignation of the Muncie, Indiana Lead Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
April 14, 2016, request from the Indiana Department of Environmental 
Management (IDEM) to redesignate the Muncie nonattainment area to 
attainment for the 2008 national ambient air quality standards (NAAQS) 
for lead. EPA is also approving the State's maintenance plan and 
attainment year emission inventory for lead. EPA is approving these 
actions in accordance with the Clean Air Act (CAA) and EPA's 
implementation regulations and guidance regarding the 2008 lead NAAQS.

DATES: This final rule is effective on May 15, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2016-0137. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
through www.regulations.gov or at the Environmental Protection Agency, 
Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding Federal holidays and facility 
closures due to COVID-19. We recommend that you telephone Mary 
Portanova at (312) 353-5954 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-5954, [email protected].

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

I. What is being addressed by this document?
II. What comments did we receive on the proposed action and what are 
EPA's responses to those comments?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is being addressed by this document?

    On May 30, 2017 (82 FR 24553), EPA issued a direct final approval 
and associated proposed rulemaking (82 FR 24635) addressing Indiana's 
April 14, 2016 submittal of a redesignation request, maintenance plan, 
and attainment year lead emissions inventory for the Muncie lead 
nonattainment area. The main source of lead emissions in the Muncie 
area is the Exide Technologies secondary lead smelter. See the direct 
final action for the full discussion of our basis for approval. Because 
we received adverse comments on the direct final approval, we withdrew 
the direct final approval on July 10, 2017 (82 FR 31722). Below, we 
address the comments that we received, and finalize our proposed 
rulemaking action.

II. What comments did we receive on the proposed action and what are 
EPA's responses to those comments?

    EPA received a set of comments from one party during the public 
comment period on the May 30, 2017 action. The comments, and EPA's 
response to each comment, are as follows:
    Comment: The commenter stated that the proposal ``incorrectly 
states that the 2015 ambient monitoring data is the most recent 
available. That is not true and it wasn't even true when the Acting 
Regional Administrator signed the rule. EPA has a legal and moral 
obligation to not provide false information in Federal Register 
notices. Thus, EPA should publish a supplemental proposal that includes 
the 2016 ambient monitoring data which was final by no later than May 
1, 2017.''
    EPA Response: Indiana submitted its redesignation request to EPA on 
April 14, 2016. The State included Muncie lead monitoring data from 
2013-2015 in its submittal. At the time of Indiana's submittal, these 
data represented the most recent available full three years of 
monitoring data, and EPA used them in evaluating Indiana's 
redesignation request.
    Indiana is required to certify and submit to EPA each year of air 
quality monitoring data by May 1 of the following year. For 2016 data, 
the deadline for state certification was May 1, 2017. The Regional 
Administrator signed the proposal to redesignate the Muncie area on May 
4, 2017. During the time that EPA staff were reviewing Indiana's 
submittal and preparing the notice of proposed rulemaking, monitoring 
data for 2016 was not yet certified, and the ``most recent'' fully 
certified data during this time was the data through 2015, which showed 
attainment of the 2008 lead NAAQS. The 2008 lead NAAQS are met when the 
maximum arithmetic three-month mean concentration for a three-year 
period is less than or equal to 0.15 micrograms per cubic meter 
([micro]g/m\3\). See 40 CFR 50.16. The maximum three-month average lead 
concentration over three years is also known as the design value. 
Although the 2016 data was certified a few days before EPA's notice of 
proposed rulemaking was signed, the 2015 monitor data was clearly the 
most recent certified, quality-assured data available at the time of 
the State's redesignation request and during EPA's review process, and 
the 2013-2015 design value was the appropriate measure for evaluating 
the State's redesignation request and proposing action. As the 
preliminary 2016 data continued to show attainment of the 2008 lead 
NAAQS, EPA did not delay its action on the redesignation.
    Moreover, air quality monitoring data at the Muncie lead monitor 
continues to show that the area is attaining the 2008 lead NAAQS, 
providing further support for EPA's finding that the area has attained 
the NAAQS under CAA section 107(d)(3)(E)(i). Table 1 below includes all 
fully certified and preliminary data available for the area and shows 
that the area's lead design value is well below the level of the NAAQS.
    EPA does not agree that a supplemental proposal is required under 
these circumstances. The CAA contemplates that EPA publish a

[[Page 29332]]

proposed and final rule in order to effectuate redesignations. CAA 
section 107(d)(2). It is not reasonable to require additional 
supplemental proposals every time additional data becomes available, 
given that new preliminary and certified data are continually updated, 
nor is it necessary. Where an area has violated the NAAQS such that EPA 
can no longer find that the area is attaining, EPA has disapproved 
redesignations. See Southwestern Pa. Growth Alliance v. Browner, 121 
F.3d 106 (3rd Cir. 1997) (upholding EPA's disapproval of a 
redesignation and stating in dicta, ``The use of the term ``has 
attained'' . . . may be interpreted as suggesting that the attainment 
must continue until the date of the redesignation.''); Kentucky v. EPA, 
No. 96-4274, 1998 U.S. App. LEXIS 21686, at *11-12 (6th Cir. Sept. 2, 
1998) (affirming EPA's disapproval of a redesignation and finding that 
``[a]s the EPA interprets the CAA, the CAA requires the EPA to 
determine attainment based on all data available at the time the EPA 
issues its ruling.'').

                                                        Table 1--Three-Month Rolling Lead Averages and Design Values for Muncie, Indiana
                                                                                           [2012-2019]
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Three-Month Rolling Lead Averages ([micro]g/m\3\) for Muncie-Mt. Pleasant Blvd. (18-035-0009)                                                                      Three-Year Design Values
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                                                                                              2012
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           Nov 2011-Jan 2012                Dec 2011-Feb 2012      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec   3-Year Design Value Period (years)
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                 0.30                              0.34              0.29     0.17     0.12     0.11     0.09     0.05     0.06     0.05     0.05     0.05             DV ([micro]g/m3)
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                                                                                              2013
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           Nov 2012-Jan 2013                Dec 2012-Feb 2013      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec  ...................................
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                 0.05                              0.06              0.04     0.03     0.03     0.03     0.03     0.04     0.04     0.05     0.04     0.04   ...................................
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                                                                                              2014
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           Nov 2013-Jan 2014                Dec 2013-Feb 2014      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec               2012-2014
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                 0.03                              0.04              0.04     0.04     0.04     0.05     0.05     0.04     0.03     0.03     0.03     0.03                   0.34
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                                                                                              2015
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           Nov 2014-Jan 2015                Dec 2014-Feb 2015      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec               2013-2015
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                 0.03                              0.03              0.04     0.05     0.06     0.06     0.06     0.05     0.03     0.04     0.04     0.11                   0.11
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                                                                                              2016
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           Nov 2015-Jan 2016                Dec 2015-Feb 2016      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec               2014-2016
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                 0.11                              0.10              0.03     0.02     0.03     0.03     0.03     0.03     0.03     0.03     0.03     0.03                   0.11
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                                                                                              2017
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           Nov 2016-Jan 2017                Dec 2016-Feb 2017      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec               2015-2017
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                 0.03                              0.03              0.02     0.02     0.03     0.03     0.04     0.04     0.03     0.04     0.03     0.04                   0.11
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                                                                                              2018
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           Nov 2017-Jan 2018                Dec 2017-Feb 2018      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec               2016-2018
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                 0.03                              0.03              0.01     0.01     0.02     0.02     0.02     0.01     0.01     0.02     0.02     0.02                   0.11
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                                                                                              2019
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           Not yet certified
           Nov 2018-Jan 2019                Dec 2018-Feb 2019      Jan-Mar  Feb-Apr  Mar-May  Apr-Jun  May-Jul  Jun-Aug  Jul-Sep  Aug-Oct  Sep-Nov  Oct-Dec             \1\ 2017-2019
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                 0.02                              0.02              0.02     0.02     0.02     0.03     0.03     0.03     0.03     0.03     0.02     0.02                   0.04
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\1\ Maximum 3-month value through December 2019; not a valid DV until certified.

    Comment: The commenter stated that EPA has not met criterion 3 of 
the redesignation requirements. The fact that the National Emission 
Standards for Hazardous Air Pollutants (NESHAP) for secondary lead 
smelters applies to Exide Technologies does not establish that the 
implementation of the NESHAP caused the area to come into attainment.
    EPA Response: To meet criterion 3, the EPA Administrator must 
determine that the improvement in air quality is due to permanent and 
enforceable emission reductions resulting from

[[Page 29333]]

implementation of the applicable SIP, Federal air pollution control 
regulations, or other permanent and enforceable emission reductions. 
The Exide Technologies facility is subject to the NESHAP as well as to 
lead emission limits and control requirements in the federally approved 
Indiana SIP, which are permanent and enforceable at all times. The 
Indiana SIP limits on emissions units at Exide Technologies and the 
requirements for total plant enclosure and control of fugitive dust 
emissions at Exide are contained in 326 Indiana Administrative Code 
(IAC) 20-13.1. EPA approved 326 IAC 20-13.1 \1\ into the Indiana SIP on 
July 17, 2015 (80 FR 42393). Therefore, EPA finds that the Indiana SIP 
contains permanent and enforceable limits for Exide Technologies in 
Muncie.
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    \1\ EPA's July 17, 2015 approval excluded certain sections of 
326 IAC 20-13.1-1, 20-13.1-5, 20-13.1-10, 20-13.1-11, 20-13.1-12, 
20-13.1-13, 20-13.1-14; and all of 326 IAC 20-13.1-15. See 40 CFR 
52.770(c).
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    Indiana has been working to reduce ambient lead concentrations in 
Muncie over many years. Lead emission control measures were implemented 
at Exide Technologies over time, both before and after the current 
NESHAP was implemented. The Muncie area was designated nonattainment 
for the 2008 lead NAAQS on November 22, 2010 (75 FR 71033). The NESHAP 
for secondary lead smelters was amended on January 5, 2012 (77 FR 556). 
At that time, Exide Technologies was already complying with the 
previous version of the NESHAP. Indiana's SIP rule 326 IAC 20-13.1 
contains lead emission standards for some emission units which are more 
stringent than those in the NESHAP. Exide was required to comply with 
the SIP limits by October 1, 2013. Indiana informed EPA that some of 
the physical controls required in the 2012 NESHAP were already in place 
at Exide Technologies before 2012. Indiana also confirmed that, 
following inspections in 2012 by IDEM and EPA staff, multiple 
housekeeping adjustments were made at the plant after the nonattainment 
designation, which improved the facility's ability to control its 
fugitive lead emissions and helped to bring the facility operations 
into full compliance with the NESHAP and the SIP emission limits. For 
example, Exide Technologies revised its procedures for servicing 
baghouse control devices to avoid allowing fugitive material to escape 
the enclosed space; located and sealed gaps and areas of leakage in the 
enclosed buildings; and installed or upgraded monitors for measuring 
the negative pressure inside the facility.
    Muncie's ambient lead concentrations began to improve in mid-2012, 
although its three-year design value still showed nonattainment of the 
2008 lead NAAQS for 2012-2014. The highest three-month average lead 
monitor reading in Muncie after its nonattainment designation was for 
December 2011-February 2012 (0.34 [micro]g/m\3\). Since that time, the 
three-month rolling average values at the Muncie monitor dropped 
rapidly, with no further three-month rolling averages exceeding the 
level of the 2008 lead NAAQS recorded at the site after the February-
April 2012 (0.17 [micro]g/m\3\) averaging period. The Muncie area 
reached full attainment of the 2008 lead NAAQS as of the 2013-2015 
design value period. The area has continued to attain the 2008 lead 
NAAQS for three more years, through the 2016-2018 design value period. 
Preliminary 2019 data also suggest that the area is still attaining the 
2008 lead NAAQS. See Table 1. EPA is satisfied that the imposition of 
the NESHAP and SIP emission control requirements for Exide 
Technologies, with full compliance facilitated by Exide Technologies' 
recently improved housekeeping measures and operating procedures, was, 
in fact, responsible for the reduction in lead emissions and the 
improvement in Muncie's monitored lead concentrations since the Muncie 
lead nonattainment designation.
    Comment: The commenter stated that to the extent that the NESHAP 
for secondary lead smelting ``does not apply during startup, shutdown, 
and/or malfunction,'' the Exide Technologies facility is not subject to 
any enforceable emission limits during startup, shutdown, and/or 
malfunction, and accordingly, criterion 3 is not met.
    EPA Response: The commenter is incorrect that the lead standard 
``does not apply'' during those periods of startup, shutdown, or 
malfunction (SSM). The NESHAP for secondary lead smelters does not 
contain exemptions from emission limits for lead during SSM; the 
existing exemptions in the NESHAP apply only to emissions of dioxins 
and furans. Compare, e.g., 40 CFR 63.543(a)-(b) (lead standards for 
process vents), with id. Sec.  63.543(c) (furan and dioxin standards 
for process vents). Accordingly, for purposes of the Muncie area's 
attainment of the 2008 lead NAAQS, the permanent and enforceable 
measure within the secondary lead smelter NESHAP contributing to that 
attainment applies at all times.
    The NESHAP for secondary lead smelters presently contains a 
provision that purports to allow a source, in limited circumstances, to 
assert an affirmative defense to civil penalty claims for exceedances 
caused by a narrow category of malfunctions.\2\ See 40 CFR 63.552. For 
two reasons, this narrowly crafted affirmative defense provision is no 
barrier to redesignation.
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    \2\ As a legal matter, this narrowly crafted affirmative defense 
does not ``exempt'' sources in Muncie or elsewhere from the NESHAP.
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    First, this affirmative defense does not legally or functionally 
``exempt'' covered sources from any emission standards because even 
with the affirmative defense provision, any exceedance of the emission 
standard at any time is still a violation. The provision is expressly 
``not available for claims for injunctive relief.'' Id. Accordingly, 
even for that narrow category of malfunction-caused exceedances, any 
exceedance is a violation of the emission standard and the NESHAP can 
be enforced through suits for injunctive relief by states, EPA, and 
affected citizens. See, e.g., 42 U.S.C. 7604(a)(1), (f)(3). With 
respect to lead emissions in Muncie, the ready availability of this 
injunctive relief ensures that the state and Federal regulators, as 
well as the public, can effectively enforce the NESHAP at Exide 
Technologies. This approach is consistent with other EPA 
redesignations. See, e.g., 79 FR 55645, 55649 (September 17, 2014) 
(affirmative defense in SIP provision was ``sufficiently enforceable 
for purposes of redesignation'' because of, inter alia, the ``continued 
availability of injunctive relief'').
    Second, regardless of the permanent and enforceable reductions 
pursuant to the lead NESHAP, Indiana's approved lead SIP contains 
additional provisions applicable to the Exide Technologies facility. 
Although some of these provisions are based on the NESHAP for secondary 
lead smelters, these approved SIP rules do not include any exemptions 
or affirmative defense provisions for lead or any other pollutants. 
Pertinent to the issue of startup, shutdown, and malfunction, the 
Indiana SIP rule for secondary lead smelters states at 326 IAC 20-13.1-
1(f), ``Emission standards in this rule apply at all times.'' 
Additionally, 326 IAC 20-13.1-5(h) requires, ``At all times, the owner 
or operator of a secondary lead smelter shall operate and maintain any 
affected emission unit, including associated air pollution control 
equipment and monitoring equipment, in a manner consistent with safety 
and good air pollution control practices for minimizing emissions.'' 
Although, as a matter of State law, Indiana's rule 326 IAC 20-13.1-15 
contains affirmative

[[Page 29334]]

defense language for malfunctions similar to that of the NESHAP, the 
provision is not part of Indiana's approved, federally enforceable lead 
SIP. See 80 FR 42393, 42394 (July 17, 2015) (noting that Indiana 
expressly asked EPA not to approve 326 IAC 20-13.1-15 into the lead 
SIP); 40 CFR 52.770(c) (identifying EPA-approved rules). Therefore, 
regardless of the enforceability of the lead NESHAP, EPA is satisfied 
that Indiana's federally enforceable lead SIP requirements for Exide 
Technologies do not contain any exemptions for emissions during SSM, 
despite the commenter's allegations.
    Comment: The commenter stated that the ambient monitoring values 
are not consistent with a conclusion that the NESHAP caused the area to 
attain. Specifically, the commenter stated, ``All of the values for 
2013-2015 are below 0.06 except in the last quarter, the value almost 
doubles to 0.11. This seems to indicate that something else was 
happening during all of the quarters except the last quarter. Was the 
Exides [sic] plant even operating at full capacity during all of the 
quarters except last quarter of 2015? If so, was the plant voluntarily 
operating in a manner to keep the ambient values low? By voluntarily, I 
mean operating in a manner not required by the NESHAP. Without an 
answer to these questions, EPA cannot conclude that the NESHAP caused 
the area to come into compliance.'' The commenter further stated that 
the 2016 monitoring data, with a three-month maximum high of 0.11 
[micro]g/m\3\, ``once again establishes that something other than the 
NESHAP caused the 2013-2015 values to be so low. Furthermore, the fact 
that the First Max and Second Max on Monitor 3 was above the level of 
the NAAQS indicates that rather than the NESHAP causing attainment of 
the NAAQS, Indiana DEM just got lucky do [sic] to some random factor 
like meteorology or the plant is operating in a manner to make 
voluntary reductions to above [sic] violating the NAAQS. EPA should 
also review communications between IDEM and Exides [sic] to ensure that 
they are not working together to use voluntary measures to avoid the 
monitors' detecting NAAQS exceedances.''
    EPA Response: EPA does not agree that the single three-month 
average cited by the commenter indicates that the area's attainment of 
the NAAQS cannot be the result of permanent and enforceable measures. 
The 2013-2015 design value of 0.11 [micro]g/m\3\ meets the lead NAAQS 
of 0.15 [micro]g/m\3\. However, as the commenter pointed out, there 
appeared to be a sudden rise in the three-month average value at the 
end of 2015. An elevated air quality monitor value was recorded at the 
Muncie site on December 14, 2015. Exide Technologies told IDEM that on 
that date, errors occurring while replacing bags in the baghouse caused 
eight bags to fall off when the unit undertook its routine mechanical 
action to remove the sediment which had deposited on the bags. After 
the bags were properly reinstalled, subsequent monitor readings 
improved. EPA reiterates that Muncie's monitored design value for 2013-
2015 (which represents the highest single three-month average 
concentration over the three-year period) was below the NAAQS of 0.15 
[micro]g/m\3\. The December 2015 incident at Exide Technologies' 
baghouse did not cause or contribute to any violation of the 2008 lead 
NAAQS. EPA is satisfied that Exide Technologies' compliance with its 
lead SIP requirements, which include proper operation of control 
technologies, will ensure that monitored air quality in Muncie will 
remain below the 2008 lead NAAQS.
    The commenter was concerned that EPA could be overlooking an upward 
emissions trend after concentrations appeared to rise at the end of 
2015. More monitoring data for Muncie has become available since EPA's 
proposal. See Table 1. Considering only the data through 2015, it might 
appear that the lead emissions in Muncie had been low but suddenly 
climbed at the end of 2015. However, EPA believes that the three-month 
average concentration of 0.11 [micro]g/m\3\ for October-December 2015 
did not demonstrate a return to routinely high emissions that could 
lead to violations of the 2008 lead NAAQS, nor does it call into 
question EPA's conclusion that the permanent and enforceable measures 
on the facilities at issue are the cause of the area's attainment of 
the standard. The alleged baghouse incident in December 2015 apparently 
resulted in a monthly average concentration of 0.2519 [micro]g/m\3\. 
Although the monthly monitored lead concentrations for the months 
surrounding December 2015 were much lower, the three consecutive three-
month lead averages which included December 2015 were calculated to be 
at or near 0.11 [micro]g/m\3\. The surrounding single-month values were 
0.0505 [micro]g/m\3\ (October 2015) and 0.0347 [micro]g/m\3\ (November 
2015), and 0.0319 [micro]g/m\3\ (January 2016) and 0.0233 [micro]g/m\3\ 
(February 2016). The subsequent three-month averages after the December 
2015-February 2016 period were all much lower than 0.11 [micro]g/m\3\. 
Because the form of the 2008 lead NAAQS uses the maximum three-month 
average value over three years as the design value, the design values 
for 2013-2015, 2014-2016, and 2016-2018 were all 0.11 [micro]g/m\3\, 
since those three-year averaging periods all included the three-month 
average of 0.11 [micro]g/m\3\ for October-December 2015 and/or November 
2015-January 2016.
    The monitoring data demonstrate an overall pattern that strongly 
supports a redesignation to attainment. The Muncie lead three-month 
average concentrations have typically ranged from 0.01 [micro]g/m\3\ to 
0.06 [micro]g/m\3\ from June-August 2012 through the present. The only 
higher three-month averages were the October-December 2015 three-month 
average value cited by the commenter, and the two three-month average 
values following it, but these have been shown to be caused by a single 
month's short-lived emission increase. As shown in Table 1, the 
remaining 74 certified three-month average values since June-August 
2012 have been no higher than 0.06 [micro]g/m\3\. Considering 
preliminary monitoring data for 2019, the maximum three-month average 
lead concentration value from 2017-2019 (specifically, beginning with 
the three-month average for November 2016 to January 2017 and 
continuing through October-December of 2019) appears likely to be as 
low as 0.04 [micro]g/m\3\. EPA is satisfied that the Muncie lead 
monitoring data suggest that the December 2015 incident does not 
represent a return to pre-2012 ambient lead concentrations. Instead, 
the data indicate that the area is attaining the 2008 lead NAAQS.
    The commenter speculates that the Muncie area's monitored 
attainment may be due to the Exide facility's voluntary operation in a 
manner that reduces emissions, and that absent proof that the facility 
is not voluntarily curtailing emissions, EPA cannot conclude that the 
NESHAP is the cause of the area's compliance. The commenter also 
suggests that EPA should review all communications between IDEM and 
Exide Technologies in order to ensure there is no collusion to use 
voluntary curtailment of emissions to meet the NAAQS. Per EPA's 
longstanding guidance regarding redesignations to attainment, EPA 
interprets CAA section 107(d)(3)(E)(iii) to require a showing that the 
state must be able to ``reasonably attribute'' the improvement in air 
quality to emission reductions which are permanent and enforceable. 
Memorandum from John Calcagni, ``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' (Sept. 4, 1992) (``Calcagni Memo''), 
at 4. The record demonstrates that the State has done so here. In its

[[Page 29335]]

redesignation request and maintenance plan submission, Indiana modeled 
projected ambient lead concentrations for the Muncie area using 
allowable emission limits at the single source of lead in the area, 
Exide Technologies. See [Maintenance Plan at 21-22]. Given the State's 
technical demonstration that the area would continue to attain the 2008 
lead NAAQS if the source at issue were to emit at allowable levels, 
there is no record support for commenter's speculation that Muncie's 
attainment is due to Exide's voluntary curtailment of emissions (i.e., 
actual emissions that are below the level that would be permitted under 
the emission limits), rather than the permanent and enforceable limits 
for Exide Technologies and the NESHAP cited by Indiana. EPA does not 
agree that given the record evidence, it must prove the negative--that 
the area's attainment was not caused by the emission limits imposed 
here. There is a single source in the Muncie area, emission limits were 
imposed on that source, those limits correlate with a measured and 
sustained drop in ambient lead concentrations (excepting expected 
short-term variability), and the State has provided additional modeling 
showing that even if emissions were to go up to permitted levels, the 
area would still maintain the NAAQS. We therefore disagree that it is 
necessary to review communications between Indiana and Exide 
Technologies before we may draw the conclusion that CAA section 
107(d)(3)(E)(iii) has been satisfied.
    The comment also cited the first and second maximum values of 
Monitor 3 as evidence that something other than the NESHAP caused the 
area's attainment of the NAAQS. The May 30, 2017 direct final/proposed 
action did not publish or discuss first and second maximum monitored 
values. The commenter did not provide the monitor data reports which 
formed the basis of these comments, but if the commenter's data source 
reports were similar to those found in EPA's air quality data website's 
Monitor Values Report (https://www.epa.gov/outdoor-air-quality-data), 
then EPA notes that the Monitor Values Reports for lead for the 
individual calendar years do show the first through fourth maximum data 
points. These are the four highest single-day monitored values at the 
site. These overall maximum daily values are not intended to be 
directly compared to the NAAQS. Compliance with the 2008 lead NAAQS is 
not determined by whether an area's daily maximum concentrations exceed 
the level of the NAAQS, but rather by whether an area's design value 
meets the NAAQS. For the 2008 lead NAAQS, the design value for an air 
quality monitor is defined as the maximum three-month mean 
concentration at that monitor over three years. See 40 CFR 50.16. An 
area's design value is based on the monitor in the area which records 
the highest design value over the three-year period. Muncie has one 
regulatory air quality monitor for lead, the Mt. Pleasant Boulevard 
monitor, 18-035-0009. An area attains the 2008 lead NAAQS if the area's 
design value is equal to or below 0.15 [micro]g/m\3\. The ``first max'' 
and ``second max'' cited by the commenter do not indicate that the 
Muncie area is violating the 2008 lead NAAQS. A more relevant value for 
NAAQS comparison, which can be found in the Monitor Values Report, is 
the maximum three-month average value for the year reported. The 
maximum three-month average value at Muncie has been below the level of 
the NAAQS since 2013.
    As for the elevated single-day monitored values cited by the 
commenter, EPA notes that short-term ambient levels of lead can be 
affected by short-term variations in lead emissions from industrial 
sources, or local meteorological conditions that can affect the 
entrainment of nearby lead-bearing dust or the strength or direction of 
the dispersion of industrial lead emissions in the atmosphere. The 
State's modeled attainment demonstration also accounts for the variety 
of meteorological conditions which can occur in the Muncie area, and 
the analysis has shown that at allowable emissions, the Muncie area 
will meet the 2008 lead NAAQS. EPA does not find that the occurrence of 
occasional elevated daily monitored values, which do not result in 
three-month averages above the 2008 lead NAAQS, indicate that this area 
should not be redesignated.
    Regarding the comment that random outside factors such as weather 
may have played a role in the reduced ambient concentrations evident at 
the monitor in recent years, the monitoring data do not appear to 
support that conclusion. The monitor has been in the same location for 
more than ten years and has measured ambient lead concentrations both 
above and below the NAAQS during that interval. The pattern of ambient 
monitored levels of lead at the Muncie monitor since 2012 shows a 
distinct drop below the 2008 lead NAAQS, and then remains generally 
steady at or near that low level. Three-month ambient lead levels are 
not as sensitive to weather conditions as pollutants formed in the 
atmosphere such as ozone. Wind variations or weather events may affect 
the strength or direction of local dispersion of lead emissions, or the 
uptake of windblown surface sediments, but these effects would be 
short-lived and variable. The historical pattern of monitored levels at 
Muncie is more indicative of emission reductions taking effect while 
daily variation continues to occur as expected. The monthly and three-
month average monitored values have been less variable in recent years 
than before 2013, which does not seem to indicate that favorable 
weather conditions have reduced monitored values more than recent 
emission reductions have done.
    Comment: EPA should also review data from monitors 1 and 2 at the 
Muncie monitoring location. Even if these monitors' data cannot be used 
for criterion 1, they can be used to evaluate the other criteria.
    EPA Response: There is one lead monitor in Muncie (18-035-0009) 
that is used for comparison to the lead NAAQS. It is located at 2601 W 
Mt. Pleasant Boulevard. There is another monitor collocated with 
monitor 18-035-0009, but it is only used to fill in missing data at the 
main monitor. A third Muncie monitor, known as Exide East (18-035-
0008), is an industrial site monitor owned and operated by Exide 
Technologies and is not used for regulatory purposes. EPA has reviewed 
the data from all three monitors. Although the data from the Exide East 
monitor and the Mt. Pleasant Boulevard collocated monitor are not 
directly used for NAAQS evaluation, EPA notes that for 2013 through 
2018, the Exide East lead monitor and the collocated monitor show 
three-month average values and three-year design values of similar 
magnitude to those of the Mt. Pleasant Boulevard reporting monitor. 
Neither monitor reported three-month average values in that period 
which would exceed the NAAQS.
    Comment: The commenter stated that in order to meet criterion 3 as 
well as criterion 4, EPA must model the ambient levels of lead in all 
ambient air locations using the maximum allowable emissions under the 
NESHAP. The commenter suggested that it is extremely likely that such 
modeling will show violations of the NAAQS and thus require EPA to 
disapprove the redesignation request and maintenance plan.
    EPA Response: The May 30, 2017 action cited Indiana's modeling 
analysis, included in the docket at EPA-R05-OAR-2016-0137, which 
demonstrated that the maximum allowable federally enforceable emission 
limits for Exide Technologies

[[Page 29336]]

will provide for attainment of the NAAQS.
    Comment: The commenter stated that as to redesignation criteria 1, 
3, and 5, EPA has determined that the Indiana SIP is defective because 
it allows emissions above emission limits during malfunctions even if 
those emissions cause violations of a NAAQS. In support of this 
proposition, the commenter cites the final notice for the SSM SIP Call 
at 80 FR 33840, 33966 (June 12, 2015). The commenter asserts that, 
accordingly, EPA ``cannot approve this redesignation until Indiana or 
EPA removes 326 Ind. Admin. Code 1-6-4(a) from the Indiana SIP.''
    EPA Response: Criteria 1, 3, and 5, cited by the commenter, appear 
to refer to CAA sections 107(d)(3)(E)(i), (iii), and (v). The commenter 
also cites EPA's June 12, 2015 SSM SIP Call concerning how provisions 
in SIPs treat excess emissions during periods of SSM (80 FR 33840). As 
the commenter stated, the Indiana SIP rule identified in the SIP Call 
is 326 IAC 1-6-4(a), approved by EPA in 1984. That rule, however, 
applies only to non-major sources whose potential emissions are so 
small that their sole permitting requirement is either a registration 
permit or minor source permit under 326 IAC 2-1-1 or 326 IAC 2-1-4, 
respectively. It does not apply to Exide Technologies, the source that 
Indiana identified as the only contributor to ambient lead 
concentrations in Muncie. Exide Technologies has a major source 
operating permit issued by IDEM pursuant to rules approved by EPA under 
title V of the CAA and 40 CFR part 70. Exide Technologies' part 70 
permit states at section B.11(d) that Exide Technologies' permit 
conditions supersede 326 IAC 1-6.
    With respect to commenter's specific allegations regarding the 
redesignation criteria, we do not agree that the SSM provision at issue 
in 326 IAC 1-6-4(a) calls into question EPA's finding that the area has 
attained the NAAQS. The air quality monitoring data clearly show that 
the area is attaining the NAAQS, and the status of the SSM SIP Call 
does not alter those factual circumstances. We also disagree that the 
SSM provision impacts EPA's conclusion that CAA section 
107(d)(3)(E)(iii) is satisfied. The permanent and enforceable lead 
emission reductions at Exide Technologies, which were demonstrated to 
provide for attainment in Muncie, would not be affected in any way by 
326 IAC 1-6-4(a), which plainly does not apply to the single, relevant 
source. Finally, EPA believes that the SSM provision cited by the 
commenter is not relevant to the inquiry of whether Indiana has 
complied with CAA section 107(d)(3)(E)(v), which requires Indiana to 
have ``met all requirements applicable to the area under section 110 of 
this title and part D of this subchapter.'' Not every requirement in 
the CAA is ``applicable'' for purposes of determining whether a 
nonattainment area may be redesignated, per CAA section 
107(d)(3)(E)(v). The provision at issue here does not apply to any lead 
sources in the Muncie area, and is not ``applicable'' for purposes of 
evaluating Muncie's request for redesignation.

III. What action is EPA taking?

    EPA is redesignating the Muncie lead nonattainment area to 
attainment of the 2008 lead NAAQS. The Muncie lead nonattainment area 
in Delaware County, Indiana, consists of a portion of the City of 
Muncie, Indiana, bounded to the north by West 26th Street/Hines Road, 
to the east by Cowan Road, to the south by West Fuson Road, and to the 
west by a line running south from the eastern edge of Victory Temple's 
driveway to South Hoyt Avenue and then along South Hoyt Avenue. EPA is 
also approving Indiana's lead maintenance plan for the Muncie area and 
the 2013 lead attainment year emission inventory for Muncie.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for these actions to become effective immediately upon publication. 
This is because a delayed effective date is unnecessary due to the 
nature of a redesignation to attainment, which relieves the area from 
certain CAA requirements that would otherwise apply to it. The 
immediate effective date for this action is authorized under both 5 
U.S.C. 553(d)(1), which provides that rulemaking actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction,'' and section 
553(d)(3), which allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' The purpose of the 30-day waiting period 
prescribed in section 553(d) is to give affected parties a reasonable 
time to adjust their behavior and prepare before the final rule takes 
effect. This rule, however, does not create any new regulatory 
requirements such that affected parties would need time to prepare 
before the rule takes effect. Rather, this rule relieves the State of 
planning requirements for this lead nonattainment area. For these 
reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these 
actions to become effective on the date of publication of these 
actions.

IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the status of the geographical 
area and do not impose any additional regulatory requirements on 
sources beyond those required by state law. A redesignation to 
attainment does not in and of itself impose any new requirements, but 
rather results in the application of requirements contained in the CAA 
for areas that have been redesignated to attainment. Moreover, the 
Administrator is required to approve a SIP submission that complies 
with the provisions of the CAA and applicable Federal regulations. 42 
U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 
EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. Accordingly, this action merely approves state law 
as meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For these reasons, this 
action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action under Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);

[[Page 29337]]

     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because 
redesignation is an action that affects the status of a geographical 
area and does not impose any new regulatory requirements on tribes, 
impact any existing sources of air pollution on tribal lands, nor 
impair the maintenance of lead NAAQS in tribal lands.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 14, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: April 20, 2020.
Kurt Thiede,
Regional Administrator.

    40 CFR parts 52 and 81 are amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. In Sec.  52.770, the table in paragraph (e) is amended by adding 
entries for ``Muncie 2008 lead emissions inventory'' and ``Muncie 2008 
lead maintenance plan'' following the entry for ``Muncie Hydrocarbon 
Control Strategy'' to read as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                Title                   Indiana date            EPA approval                  Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Muncie 2008 lead emissions inventory.       4/14/2016  5/15/2020, [insert Federal
                                                        Register citation].
Muncie 2008 lead maintenance plan....       4/14/2016  5/15/2020, [insert Federal
                                                        Register citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.797 is amended by adding paragraphs (f) and (g) to read 
as follows:


Sec.  52.797  Control strategy: Lead.

* * * * *
    (f) Approval--Indiana's 2008 lead emissions inventory for the 
Muncie area, as submitted on April 14, 2016, satisfying the emission 
inventory requirements of section 172(c)(3) of the Clean Air Act for 
the Muncie area.
    (g) Approval -- The 2008 lead maintenance plan for the Muncie, 
Indiana nonattainment area has been approved as submitted on April 14, 
2016.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
4. The authority citation for part 81 continues to read as follows:

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


0
5. Section 81.315 is amended by revising the entry for Muncie, IN in 
the table entitled ``Indiana--2008 Lead NAAQS'' to read as follows:


Sec.  81.315  Indiana.

* * * * *

[[Page 29338]]



                                            Indiana--2008 Lead NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                     Designation for the 2008 NAAQS \a\
                      Designated area                      -----------------------------------------------------
                                                               Date \1\                     Type
----------------------------------------------------------------------------------------------------------------
                                                   Muncie, IN
----------------------------------------------------------------------------------------------------------------
Delaware County (part)....................................    May 15, 2020  Attainment.
    A portion of the City of Muncie, Indiana bounded to
     the north by West 26th Street/Hines Road, to the east
     by Cowan Road, to the south by West Fuson Road, and
     to the west by a line running south from the eastern
     edge of Victory Temple's driveway to South Hoyt
     Avenue and then along South Hoyt Avenue.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ December 31, 2011, unless otherwise noted.

[FR Doc. 2020-08874 Filed 5-14-20; 8:45 am]
BILLING CODE 6560-50-P