[Federal Register: November 15, 1996 (Volume 61, Number 222)]
[Page 58482-58487]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[IN72-1a; FRL-5647-9]

Designation of Areas for Air Quality Planning Purposes; Indiana

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

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SUMMARY: In this action, EPA is approving two redesignation requests submitted by the State of Indiana. On March 14, 1996, Indiana requested that a portion of Marion County be redesignated to attainment of the National Ambient Air Quality Standard (NAAQS) for sulfur dioxide (SO₂). On June 17, 1996, Indiana requested that portions of LaPorte and Wayne Counties and all of Vigo County be redesignated to attainment for SO₂. The EPA is also approving the maintenance plans for Marion, LaPorte, Vigo, and Wayne Counties, which were submitted with the redesignation requests to ensure maintenance of the NAAQS. Subsequent to this approval, Marion, LaPorte, Vigo, and Wayne Counties are each designated attainment in their entirety.

DATES: The ``direct final'' is effective on January 14, 1997. If the effective date is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the revision request are available for inspection at the following address: Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (It is recommended that you telephone Ryan Bahr at (312) 353-4366 before visiting the Region 5 Office.)

Written comments should be sent to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Ryan Bahr at (312) 353-4366.

SUPPLEMENTARY INFORMATION:

I. Background

The NAAQS for SO₂ consist of two standards: a primary standard for the protection of public health and a secondary standard for the protection of public welfare. The primary SO₂ standard consists of a 24-hour maximum and an annual arithmetic mean ambient SO₂ concentration. The secondary standard consists of a 3-hour maximum ambient SO₂ concentration. (See 40 CFR 50.2-50.5)

On March 3, 1978 (43 FR 40412), Marion County was designated nonattainment for SO₂ based on monitored violations of the 24-hour standard and modeled violations of both the annual and 24-hour standards (43 FR 8962). Also on March 3, 1978, a portion of LaPorte County bordered by Lake Michigan, the State of Michigan, Porter County and Interstate 94 was designated as nonattainment for both the primary and the secondary SO₂ standards, due to measured and modeled violations of the SO₂ NAAQS. On the same date, Vigo County was designated as nonattainment of the primary SO₂ standard because of monitored violations, and Wayne County was designated nonattainment because dispersion modeling predicted primary standard violations.

In an October 5, 1978 (43 FR 45993) action, the Marion County nonattainment designation was revised to attainment of the secondary SO₂ standard, since no 3-hour SO₂ violations had been monitored or predicted. Also on that date, LaPorte County's designation was revised to nonattainment of the primary standard only. In addition, the Wayne County nonattainment area was revised to include only Boston, Center, Franklin, Wayne and Webster Townships, which encompassed the contributing sources (43 FR 46007).

On September 18, 1990, Lawrence, Washington, and Warren Townships in Marion County were redesignated from nonattainment to ``Cannot be classified''

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based on clean ambient data and full source compliance with emission limitations (55 FR 38327). The rest of Marion County remained nonattainment for SO₂. (Note: At the time of this redesignation, EPA commonly redesignated areas to ``Cannot be classified,'' rather than ``attainment,'' due to concerns about the adequacy of monitoring networks. However, as of November 15, 1990, Section 107 (d)(3)(F) of the Clean Air Act Amendments prohibited redesignations to unclassifiable status.)

In order to satisfy the requirements of Part D and Section 110 of the Clean Air Act (Act) for the four nonattainment areas, Indiana submitted a SO₂ State Implementation Plan (SIP) request to USEPA. The USEPA approved Indiana's SO₂ SIP submission for these areas on September 1, 1988 (53 FR 33808). There have been no monitored violations of the SO₂ standard in any of the four counties since 1985.

II. Evaluation Criteria

Section 107(d)(3)(D) of the Act, as amended in 1990, authorizes the Governor of a State to request the redesignation of an area from nonattainment to attainment. The criteria used to review redesignation requests are derived from the Act. An area can be redesignated to attainment if the following conditions are met:

(1) The area has attained the applicable NAAQS;

(2) The area has a fully approved SIP under section 110(k) of the Act;

(3) The EPA has determined that the improvement in air quality in the area is due to permanent and enforceable emission reductions;

(4) EPA has determined that the maintenance plan for the area has met all of the requirements of section 175A of the Act; and

(5) The State has met all requirements applicable to the area under section 110 and part D of the Act.

III. Summary of State Submittal

The following paragraphs discuss how the State's redesignation requests for Marion, LaPorte, Vigo and Wayne Counties address the Act's requirements.

A. Demonstrated Attainment of the NAAQS

As explained in an April 21, 1983, memorandum ``Section 107 Designation Policy Summary'' from the Director of the Office of Air Quality Planning and Standards, eight consecutive quarters of data showing SO₂ NAAQS attainment are required for redesignation. A violation of the NAAQS occurs when more than one exceedance of the SO₂ NAAQS is recorded in any year (40 CFR 50.4). Indiana's March 14, 1996, and June 17, 1996, submittals cite ambient monitoring data showing that Marion, LaPorte, Vigo, and Wayne Counties have met the NAAQS for the years 1991-1993, which were the three most recent consecutive years with quality-assured monitoring data. Preliminary monitoring data for the period of 1994 through 1996 indicates that the NAAQS are still being met. The State is currently in the process of quality assuring that data. The highest monitored SO₂ values of 1991 through 1993 were well below the SO₂ standards. There have been no exceedences of the SO₂ NAAQS at any monitor in any of these counties since 1985, and no additional SO₂ exceedences have been recorded in the Aerometric Information and Retrieval System (AIRS) database through July 1996.

Dispersion modeling is commonly used to demonstrate attainment of the SO₂ NAAQS. A September 4, 1992, EPA policy memorandum on ``Procedures for Processing Requests to Redesignate Areas to Attainment'' explains that additional dispersion modeling is not required in support of an SO₂ redesignation request if an adequate modeled attainment demonstration was submitted and approved as part of the fully implemented SIP, and no indication of an existing air quality deficiency exists. Modeling was performed in 1987 to show that, under all allowed operating scenarios, the emission limits in these four counties' SO₂ SIPs would lead to attainment and maintenance of the SO₂ standards. The SIP was approved and implemented on September 1, 1988 (53 FR 33806). Dispersion modeling of the various allowed operating scenarios and modeling using maximum allowable emissions showed the NAAQS to be protected in each of these counties (53 FR 6845). Furthermore, there have been no SO₂ NAAQS exceedences in any of these areas since 1985. Therefore, EPA did not require Indiana to submit additional dispersion modeling with its redesignation request for Marion, LaPorte, Wayne or Vigo Counties. The State has committed to reevaluate the SO₂ modeling for each county every three years and perform new modeling as necessary to account for the effect of new sources or significant emission changes in existing sources.

B. Fully Approved SIP

The SIP for the area must be fully approved under section 110(k) of the Act and must satisfy all requirements that apply to the area. EPA's guidance for implementing section 110 of the Act is discussed in the General Preamble to Title I (57 FR 13498, April 16, 1992). The SO₂ SIP for Marion, LaPorte, Wayne, and Vigo Counties met the requirements of Section 110 of the Act and was approved by EPA on September 1, 1988 (53 FR 33806). The SIP supplemented a set of general Statewide SO₂ limitations with a set of individual emission limits for specific sources in the respective counties. The Indiana SO₂ SIP included schedules and timetables for compliance, provided for the operation of air quality monitors, and included a program to provide for the enforcement of the emission limits.

C. Permanent and Enforceable Reductions in Emissions

Marion, LaPorte, Wayne, and Vigo Counties' attainment of the SO₂ standards can be attributed to the implementation of the SO₂ SIP controls and other permanent emissions reductions. On September 1, 1988, EPA approved the control strategies and emissions limits in Indiana's SO₂ SIP for these counties, which rendered them federally enforceable. The regulations are permanent, and any future revisions to the rules must be submitted to and approved by the EPA. Statewide inventories of major SO₂ sources as of 1990 were used to support the redesignation requests.

Indiana reported that since 1990, a number of sources in the four counties reduced their SO₂ emissions, converted to cleaner fuels, or shut down entirely. The use of lower-sulfur ``cleaner'' fuels is reflected in the facilities' air permits and federally enforceable SIP regulations. The facilities which have completely shut down no longer hold current air emissions permits, and future operations at those locations would not be allowed to commence without the issuance of a new air permit by the State under the federally delegated Prevention of Significant Deterioration program.

D. Fully Approved Maintenance Plan

Under section 107(d)(3)(E) and section 175A of the Act, the State must submit a maintenance plan in order for an area to be redesignated to attainment. Section 175A of the Act sets forth the maintenance plan requirements for areas seeking redesignation from nonattainment to attainment. The maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the area is redesignated. Eight years after the redesignation date, the State is required to revise its SIP to provide for maintenance of the standard in the

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affected area for an additional ten-year period. EPA redesignation policy stated in the September 4, 1992, memorandum lists the five core provisions that a plan must contain in order to ensure maintenance of the standards: An attainment inventory, a maintenance demonstration, a monitoring network, verification of continued attainment, and a contingency plan. Indiana submitted maintenance plans along with both its March 14, 1996, redesignation request for Marion County and its June 17, 1996, redesignation request for LaPorte, Vigo and Wayne Counties. The following paragraphs discuss Indiana's submittals with regard to EPA's requirements, and provide the basis for EPA's approval of the maintenance plans.

1. Attainment Inventory

The State is required to develop an attainment inventory to identify the level of emissions in the area at the time of redesignation. Indiana prepared a base year inventory for 1990, and supplemented it with major source actual emissions data from 1993. Sources in Indiana must also report their emissions annually to the State, which will help to verify maintenance of the NAAQS in future years.

2. Maintenance Demonstration

The State is required to demonstrate maintenance of the NAAQS by showing that future emissions of a pollutant or its precursors will not cause a violation of the NAAQS. This demonstration requires the State to project emissions for the 10-year period following redesignation. The State projected the SO₂ emissions of Marion, LaPorte, Vigo, and Wayne Counties to the year 2007. Five of Marion County's industries account for almost 90% of the total SO₂ emissions in the county. One of LaPorte County's industries accounts for more than 95% of the total SO₂ emissions in the county. In Vigo County, one source accounts for more than 93% of total emissions. Wayne County only has two major sources, one of which is responsible for about 96% of total emissions.

Growth projections for the largest facilities were primarily based on the facilities' plans to comply with the provisions of Title IV of the Act (Acid Deposition Control). Projections for other major sources were extrapolated from the United States Department of Commerce Bureau of Economic Analysis growth factors which are based on statewide industrial earnings data. A growth factor of 1.5 was used for most smaller sources, except those which had switched to natural gas or could otherwise justify a different factor. In LaPorte and Vigo Counties, the emissions calculated with growth factors from the actual emissions in 1990 are predicted to drop significantly. The emissions are predicted to rise in Wayne County but remain below the maximum allowable emissions which were modeled for and which were shown to be protective of the NAAQS.

SO₂ emissions are projected to increase in Marion County by

However, they are still expected to remain well below the emission

totals for 1985, when the last SO₂ exceedance was monitored. In LaPorte and Vigo Counties, the emissions are predicted to drop significantly. The emissions are predicted to rise in Wayne County but remain below the maximum emissions which were modeled for and which were shown to be protective of the NAAQS.

3. Ambient Monitoring

In accordance with 40 CFR Part 58, after an area has been redesignated to attainment, the State must continue to operate an appropriate air quality network to verify the attainment status of the area. There are nine monitoring sites in Marion County. Three are operated by a utility company, and the rest are State and Local Air Monitoring Sites (SLAMS). There are two industry operated monitoring sites in LaPorte County, both of which are located in Michigan City and operated by the Northern Indiana Public Service Company (NIPSCO). There are also two monitors in Vigo County. The Indiana Department of Environmental Management operates one as a SLAMS and Public Service of Indiana (PSI) Energy operates the other. In Wayne County there are two monitors operated by Richmond Power and Light. Indiana has committed to continue monitoring SO₂ at the current SLAMS in Vigo and Marion Counties and will discuss any future changes in the monitoring network with the EPA. All data, including that from industry, will be quality assured by the State according to the requirements of 40 CFR 58. The monitoring data will be entered in the AIRS system on a timely basis.

4. Verification of Continued Attainment

Each State should ensure that it has the legal authority to implement and enforce all measures necessary to attain and to maintain the NAAQS. Subject to an existing State rule (326 IAC 2-6), the Marion, LaPorte, Vigo, and Wayne Counties facilities will be required to submit annual statements of their point-source (e.g. stack) emissions. The State has committed to reevaluate the SO₂ modeling every three years, performing further modeling as necessary to verify that the SO₂ emission limits continue to provide for maintenance of the SO₂ standards. The State does not currently have plans to relax any of the current Marion, LaPorte, Vigo or Wayne County emission limits in its SO₂ SIP. Any future changes to the State's SO₂ limits will be submitted to EPA as a SIP revision, supported by dispersion modeling showing that the NAAQS will not be violated.

5. Contingency Plan

Section 175A of the Act requires that a maintenance plan includes contingency provisions as necessary to promptly correct any violation of the NAAQS that occurs after redesignation of the area. The contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are implemented expediently once they are triggered. Most of the SO₂ emissions in these counties come from large utilities and other point sources. The emissions from these sources are tracked on a short-term basis under State regulations and on a long-term basis via the facilities' Title IV compliance plans. The State intends to use this information to identify compliance lapses and initiate enforcement activities.

Indiana has the authority and resources necessary to enforce against emission limit violations. The State will continue to pursue enforcement actions aggressively to ensure full compliance with the SO₂ SIP limits. As necessary, the State will seek to place stricter emission controls on facilities found to have triggered contingency actions. Such measures would be adopted in accordance with the State's normal rulemaking procedures and submitted to EPA as SIP revisions. Indiana has committed to begin implementing its contingency plan when the second high monitored SO₂ values exceed 90 percent of the 3-hour or 24-hour NAAQS. And, if a violation occurs, the State will conduct a detailed evaluation to determine the cause of the violation and then institute measures to remedy the situation.

The attainment inventories, maintenance demonstrations, monitoring data, attainment verifications and contingency plans submitted for Marion, LaPorte, Vigo, and Wayne Counties constitute sound maintenance plans and satisfy EPA's requirements.

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E. Part D and Other Section 110 Requirements

EPA approved the SO₂ SIP for Marion, LaPorte, Vigo, and Wayne Counties on September 1, 1988, after having concluded that the plan satisfied the requirements of part D and Section 110 of the Act. Several of the Section 110 requirements were revised in the 1990 amendments to the Act. However, the existing SIP also conforms with the new provisions of the Act. The plan provides for the implementation of reasonably available control measures for SO₂ under Indiana's SIP rule 326 IAC 7-4-2. As required by Part D of the Act, Indiana has a fully approved and implemented New Source Review. The existing Prevention of Significant Deterioration program, which was federally delegated for all attainment areas, will apply in all of Marion, LaPorte, Vigo, and Wayne Counties subsequent to this approval.

1. Section 176 Conformity Requirements

Section 176 of the Act requires States to revise their SIPs to establish criteria and procedures to ensure that individual Federal actions will conform to the overall air quality planning goals in the applicable State SIP. Section 176 further provides that the State's conformity revisions must be consistent with the Federal conformity regulations promulgated by EPA under the Act. The requirement used by Federal agencies to determine conformity is defined in 40 CFR Part 93 Subpart B (``general conformity'').

Indiana has committed to adopt general conformity rules for SO₂ in Marion, LaPorte, Vigo, and Wayne Counties to satisfy provisions of Part D. The State rulemaking process is now under way. The conformity regulations that apply to transportation plans and projects, ``transportation conformity'', does not apply to SO₂ SIP actions.

The EPA believes it is reasonable to interpret the conformity requirements as not being applicable requirements for purposes of evaluating redesignation requests under section 107(d). The rationale for this is based on a combination of two factors. First, the requirement to submit SIP revisions to comply with the conformity provisions of the Act continues to apply to areas after redesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of federally approved State rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment, and must implement conformity under Federal rules if State rules are not yet approved, the EPA believes it is reasonable to view these requirements as not being applicable requirements for purposes of evaluation of a redesignation request. Consequently, the SO₂ redesignation requests for Marion, LaPorte, Vigo, and Wayne Counties may be approved notwithstanding the lack of fully approved general conformity rules. Refer to EPA's action in the Tampa, Florida ozone redesignation finalized on December 7, 1995 (60 FR 627428).

IV. Final Rulemaking Action

EPA is approving two redesignation requests from the State of Indiana which were submitted on March 14, 1996, and June 17, 1996. EPA therefore is redesignating Lawrence, Washington, and Warren Townships, along with the remainder of Marion County to attainment for SO₂, and is redesignating LaPorte, Vigo, and Wayne Counties in their entirety to attainment for SO₂. The EPA is also approving the SO₂ maintenance plans for Marion, LaPorte, Vigo, and Wayne Counties, which were submitted with the redesignation requests, to ensure that attainment will be maintained. The EPA has completed analysis of these SIP revision requests based on a review of the materials presented, and has determined that they are approvable.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document in this Federal Register publication, the EPA is proposing to approve the SIP revision should adverse or critical comments be filed. This action will be effective January 14, 1997 unless, by December 16, 1996, adverse or critical comments are received. Note that an adverse comment for only one county will not affect the approval action for the remainder of the counties.

If the EPA receives such comments, the actions affecting the county commented upon will be withdrawn before the effective date by publishing a subsequent notice that will withdraw the parts of the final action applicable to the county commented upon. All public comments received will be addressed in a subsequent final rule based on applicable parts of this action serving as a proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective January 14, 1997.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any state implementation plan. Each request for revision to the state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995 memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation. The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq, EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not impose any new requirements, the Administrator certifies that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410 (a)(2).

Redesignation of an area to attainment under section 107(d)(3)(E) of the Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a

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geographical area and does not impose any regulatory requirements on sources. The Administrator certifies that the approval of the redesignation request will not affect a substantial number of small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must undertake various actions in association with any proposed or final rule that includes a Federal mandate that may result in estimated costs to state, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. This Federal action approves pre-existing requirements under state or local law, and imposes no new Federal requirements. Accordingly, no additional costs to state, local, or tribal governments, or the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Controller General of the General Accounting Office prior to publication of the rule in today's Federal Register. This rule is not a ``major rule'' as defined by U.S.C. section 804(2).

E. Petitions for Judicial Review

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 January 14, 1997. 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 enforce is requirements.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide.

40 CFR Part 81

Air pollution control.

Dated: October 10, 1996. David A. Ullrich, Acting Regional Administrator.

For the reasons stated in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

2. Section 52.795 is amended by adding paragraphs (f) and (g) to read as follows:

Sec. 52.795 Control strategy: Sulfur dioxide.

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(f) Approval--On March 14, 1996, the State of Indiana submitted a maintenance plan for Lawrence, Washington, and Warren Townships in Marion County and the remainder of the county, and requested that it be redesignated to attainment of the National Ambient Air Quality Standard for sulfur dioxide. The redesignation request and maintenance plan satisfy all applicable requirements of the Clean Air Act.

(g) Approval--On June 17, 1996, the State of Indiana submitted a maintenance plan for LaPorte, Vigo, and Wayne Counties and requested redesignation to attainment for the National Ambient Air Quality Standard for sulphur dioxide for each county in its entirety. The redesignation requests and maintenance plans satisfy all applicable requirements of the Clean Air Act.

PART 81--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

2. In Sec. 81.315 in the table entitled ``Indiana-SO₂ the existing entries for Marion County are removed, a new entry for Marion County is added and the entries for LaPorte, Vigo, and Wayne Counties are revised to read as follows:

Sec. 81.315 Indiana.

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                                                   Indiana SO2 

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                                                  Does not meet   Does not meet 
Better than 
                Designated area                      primary        secondary 
Cannot be        national 
                                                    standards       standards 
classified       standards 

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LaPorte County................................. .............. 
.............. .............. X Marion 
County.................................. .............. .............. 
.............. X 



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Vigo County.................................... .............. 
.............. .............. X 



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Wayne County................................... .............. 
.............. .............. X 



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[FR Doc. 96-28872 Filed 11-14-96; 8:45 am] BILLING CODE 6560-50-P