

[Federal Register: July 19, 2007 (Volume 72, Number 138)]
[Rules and Regulations]               
[Page 39571-39573]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy07-8]                         


[[Page 39571]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2006-0715; FRL-8440-2]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On November 15, 2006, the Indiana Department of Environmental 
Management (IDEM) submitted a request to EPA for approval of the 
redesignation of the Indiana portion of the Louisville 8-hour ozone 
National Ambient Air Quality Standard (NAAQS) nonattainment area (Clark 
and Floyd Counties) to attainment of the 8-hour ozone NAAQS and of an 
ozone maintenance plan for Clark and Floyd Counties as revisions to the 
Indiana State Implementation Plan (SIP). On May 8, 2007, EPA proposed 
to approve this submission and no adverse comments have been received. 
Today, EPA is approving Indiana's request and corresponding SIP 
revision. In so doing, EPA is making a determination that the Indiana 
portion of the Louisville 8-hour ozone NAAQS has 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 years 2003 and 2020.

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-2006-0715. 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 
May 8, 2007 proposal (72 FR 26057). 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 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 November 15, 2006, Indiana submitted a request for the 
redesignation of Clark and Floyd 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 May 8, 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 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; and (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. In addition, the June 8 decision clarified that the Court's 
reference to conformity requirements for anti-backsliding purposes 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. The Court thus clarified that 1-hour 
conformity determinations are not required for anti-backsliding 
purposes.
    For the reasons set forth in the proposal, EPA does not believe 
that the

[[Page 39572]]

Court's rulings alter any requirements relevant to this redesignation 
action so as to preclude redesignation, and do 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 1-
hour 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 continue to comply with the 
applicable requirements of EPA's conformity regulations at 40 CFR Part 
93. The Court clarified that 1-hour conformity determinations are not 
required for anti-backsliding purposes.

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

    EPA provided a 30-day review and comment period and received no 
comments.

III. What Are Our Final Actions?

    EPA is taking several related actions for the Indiana portion of 
the Louisville 8-hour nonattainment area (Clark and Floyd Counties). 
First, EPA is making a determination that Clark and Floyd Counties have 
attained the 8-hour ozone standard. EPA is also approving the State's 
request to change the legal designation of Clark and Floyd Counties 
from nonattainment to attainment of the 8-hour ozone NAAQS. Further, 
EPA is approving Indiana's maintenance plan SIP revision for Clark and 
Floyd Counties (such approval being one of the CAA criteria for 
redesignation to attainment status). The maintenance plan is designed 
to keep Clark and Floyd Counties in attainment of the 8-hour ozone 
NAAQS through 2020 by ensuring that the VOC and NOX 
emissions in both Clark and Floyd Counties and the entire Louisville 
area will be lower in 2020 than in 2003, an attainment year. Finally, 
as supported by and consistent with the ozone maintenance plan, EPA is 
approving the 2003 and the 2020 VOC and NOX MVEBs for the 
Louisville area 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 Clean Air Act 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.

[[Page 39573]]

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 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 10, 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 (ii) to read as 
follows:


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

* * * * *
    (ii) Approval--On November 15, 2006, Indiana submitted a request to 
redesignate the Indiana portion of the Louisville 8-hour ozone 
nonattainment area (Clark and Floyd 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 for the entire 
Louisville area. The 2003 and 2020 motor vehicle emission budgets are 
40.97 tons per day for VOC and 95.51 tons per day for NOX, 
and 22.92 tons per day for VOC and 29.46 tons per day for 
NOX, respectively.

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 Louisville, KY-
IN: Clark and Floyd Counties in the table entitled ``Indiana Ozone (8-
Hour Standard)'' to read as follows:


Sec.  81.315  Indiana.

* * * * *

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

                                                  * * * * * * *
Louisville, KY-IN:
    Clark County.                     July 19,  Attainment...............
    Floyd County.................         2007

                                                  * * * * * * *
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\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. E7-13791 Filed 7-18-07; 8:45 am]

BILLING CODE 6560-50-P
