

[Federal Register: July 19, 2007 (Volume 72, Number 138)]
[Rules and Regulations]               
[Page 39577-39579]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy07-10]                         


[[Page 39577]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2006-0305; FRL-8440-3]

 
Determination of Attainment, Approval and Promulgation of 
Implementation Plans and Designation of Areas for Air Quality Planning 
Purposes; Indiana; Redesignation of the South Bend-Elkhart 8-Hour Ozone 
Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On May 30, 2006, the Indiana Department of Environmental 
Management (IDEM) submitted a request to EPA for approval of the 
redesignation of St. Joseph and Elkhart Counties to attainment of the 
8-hour ozone National Ambient Air Quality Standard (NAAQS) and of an 
ozone maintenance plan for St. Joseph and Elkhart Counties as revisions 
to the Indiana State Implementation Plan (SIP). On April 18, 2007, EPA 
proposed to approve this submission. Today, EPA is approving Indiana's 
request and corresponding SIP revision. In so doing, EPA is making a 
determination that St. Joseph and Elkhart Counties have attained the 8-
hour ozone NAAQS. This determination is based on three years of 
complete, quality-assured ambient air quality monitoring data for the 
2003-2005 ozone seasons that demonstrate that the 8-hour ozone NAAQS 
has been attained in the area. In addition, quality-assured monitoring 
data for 2006 show that the area continues to attain the standard. 
Finally, EPA is approving, for purposes of transportation conformity, 
the motor vehicle emission budgets (MVEBs) for the year 2020 that are 
contained in the 14-year 8-hour ozone maintenance plan for St. Joseph 
and Elkhart Counties.

DATES: This final rule is effective on July 19, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2006-0305. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at the 

Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Steven Rosenthal, 
Environmental Engineer, at (312) 886-6052 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6052, 
rosenthal.steven@epa.gov.


SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,'' 
or ``our'' are used, we mean the United States Environmental Protection 
Agency.

Table of Contents

I. What Is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Action?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review

I. What Is the Background for This Rule?

    The background for today's action is discussed in detail in EPA's 
April 18, 2007 proposal (72 FR 19413). In that rulemaking, we noted 
that, under EPA regulations at 40 CFR part 50, the 8-hour ozone 
standard is attained when the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentrations is less than 
or equal to 0.08 ppm. (See 69 FR 23857 (April 30, 2004) for further 
information). The data completeness requirement is met when the average 
percent of days with valid ambient monitoring data is greater than 90%, 
and no single year has less than 75% data completeness, as determined 
in accordance with Appendix I of Part 50.
    Under the Clean Air Act (CAA), EPA may redesignate nonattainment 
areas to attainment if sufficient complete, quality-assured data are 
available to determine that the area has attained the standard and that 
it meets the other CAA redesignation requirements in section 
107(d)(3)(E).
    On May 30, 2006, Indiana submitted a request for the redesignation 
of St. Joseph and Elkhart Counties to attainment for the 8-hour ozone 
standard. The request included three years of complete, quality-assured 
data for the period of 2003 through 2005, indicating the 8-hour NAAQS 
for ozone had been achieved. The data satisfy the applicable CAA 
requirements discussed above. The April 18, 2007, proposed rule 
provides a detailed discussion of how Indiana met these requirements.
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air 
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C.Cir. 2006). On June 
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 
04-1201, 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. 
Therefore, the Phase 1 Rule provisions related to classifications for 
areas currently classified under subpart 2 of Title I, part D of the 
Act as 8-hour nonattainment areas, the 8-hour attainment dates and the 
timing for emissions reductions needed for attainment of the 8-hour 
ozone NAAQS remain effective. The June 8 decision left intact the 
Court's rejection of EPA's reasons for implementing the 8-hour standard 
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By 
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule 
that had not been successfully challenged. The June 8 decision 
reaffirmed the December 22, 2006, decision that EPA had improperly 
failed to retain four measures required for 1-hour nonattainment areas 
under the anti-backsliding provisions of the regulations: (1) 
Nonattainment area New Source Review (NSR) requirements based on an 
area's 1-hour nonattainment classification; (2) Section 185 penalty 
fees for 1-hour severe or extreme nonattainment areas; (3) measures to 
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, 
on the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS, or for failure to attain that 
NAAQS; and, (4) certain transportation conformity requirements for 
certain types of Federal actions. The June 8 decision clarified that 
the Court's reference to conformity requirements was limited to 
requiring the continued use of 1-hour motor vehicle emissions budgets 
until 8-hour budgets were available for 8-hour conformity 
determinations.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and does

[[Page 39578]]

not prevent EPA from finalizing this redesignation. EPA believes that 
the Court's December 22, 2006, and June 8, 2007, 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 Act and longstanding policies regarding redesignation 
requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8 decision clarified that 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires only that those 1-hour 
budgets must be used for 8-hour conformity determinations until 
replaced by 8-hour budgets. To meet this requirement, conformity 
determinations in such areas must comply with the applicable 
requirements of EPA's conformity regulations at 40 CFR part 93.

II. What Comments Did We Receive on the Proposed Action?

    EPA provided a 30-day review and comment period. The only comment 
that we received was from a resident of Elkhart, Indiana, who stated 
that the redesignation recognized the region's efforts to improve air 
quality.

III. What Are Our Final Actions?

    EPA is taking several related actions. First, EPA is making a 
determination that St. Joseph and Elkhart Counties have attained the 8-
hour ozone standard. EPA is also approving the State's request to 
change the legal designation of St. Joseph and Elkhart Counties from 
nonattainment to attainment of the 8-hour ozone NAAQS. Further, EPA is 
approving Indiana's maintenance plan SIP revision for St. Joseph and 
Elkhart Counties (such approval being one of the CAA criteria for 
redesignation to attainment status). The maintenance plan is designed 
to keep St. Joseph and Elkhart Counties in attainment for ozone through 
2020. Finally, as supported by and consistent with the ozone 
maintenance plan, EPA is approving the 2020 volatile organic content 
and oxides of nitrogen MVEBs for St. Joseph and Elkhart Counties for 
transportation conformity purposes.
    In accordance with 5 U.S.C. 553(d), EPA finds that 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 553(d) is to give affected parties a reasonable time to 
adjust their behavior and prepare before the final rule takes effect. 
Today's rule, however, does not create any new regulatory requirements 
such that affected parties would need time to prepare before the rule 
takes effect. Rather, today's rule relieves the State of planning 
requirements for these 8-hour ozone nonattainment areas. 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 Review

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely approves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Redesignation of an area to attainment under 
section 107(d)(3)(E) of the 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 approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). Redesignation is an action that merely affects the status of 
a geographical area, and does not impose any new requirements on 
sources, or allows a state to avoid adopting or implementing additional 
requirements, and does not alter the relationship or distribution of 
power and responsibilities established in the Clean Air Act.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.

National Technology Transfer Advancement Act

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus

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standards (VCS), EPA has no authority to disapprove a SIP submission 
for failure to use VCS. It would thus be inconsistent with applicable 
law for EPA, when it reviews a SIP submission, to use VCS in place of a 
SIP submission that otherwise satisfies the provisions of the Clean Air 
Act. Redesignation is an action that affects the status of a 
geographical area but does not impose any new requirements on sources. 
Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 17, 2007. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review, nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to force its requirements. (See Section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

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

    Dated: July 5, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

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

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

Subpart P--Indiana

0
2. Section 52.777 is amended by adding paragraph (hh) to read as 
follows:


Sec.  52.777  Control strategy: photochemical oxidants (hydrocarbons).

* * * * *
    (hh) Approval--On May 30, 2006, Indiana submitted a request to 
redesignate St. Joseph and Elkhart Counties to attainment of the 8-hour 
ozone National Ambient Air Quality Standard. As part of the 
redesignation request, the State submitted a maintenance plan as 
required by section 175A of the Clean Air Act. Elements of the section 
175 maintenance plan include a contingency plan and an obligation to 
submit a subsequent maintenance plan revision in eight years as 
required by the Clean Air Act. Also included were motor vehicle 
emission budgets to determine transportation conformity in St. Joseph 
and Elkhart Counties. The 2020 motor vehicle emission budgets are 6.64 
tons per day for volatile organic compounds and 7.73 tons per day for 
oxides of nitrogen.

PART 81--[AMENDED]

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


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


0
2. Section 81.315 is amended by revising the entry for South Bend-
Elkhart, IN: Elkhart and St. Joseph Counties in the table entitled 
``Indiana Ozone (8-Hour Standard)'' to read as follows:


Sec.  81.315  Indiana.

* * * * *

                                                                      Indiana Ozone
                                                                    [8-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                         Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date\1\                       Type
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
South Bend-Elkhart, IN:                       7/19/07  Attainment...............................
     Elkhart County.....................
     St. Joseph County..................

                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

[FR Doc. E7-13797 Filed 7-18-07; 8:45 am]

BILLING CODE 6560-50-P
