Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Rules and Regulations 73205 

provisions of the Act 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 Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• 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); 

• 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 Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 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 February 9, 2015. 

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. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the Proposed Rules section 

of this Federal Register, rather than file 

an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking. This action may 

not be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Dated: November 3, 2014. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(165)(i)(B)(2) and 

(c)(381)(i)(G)(3) to read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(165) * * * 

(i) * * * 

(B) * * * 

(2) Rule 1140, ‘‘Abrasive Blasting,’’ 

amended on August 2, 1985. 

* * * * * 

(381) * * * 

(i) * * * 

(G) * * * 

(3) Rule 403, ‘‘Fugitive Dust,’’ 

amended on April 20, 2010. 

* * * * * 

[FR Doc. 2014–28802 Filed 12–9–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 

[EPA–R05–OAR–2012–0989; FRL 9920–14- 

Region 5] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Indiana; Redesignation of 

Lake and Porter Counties to 

Attainment of the 2008 Eight-Hour 

Ozone Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is disapproving a 

December 5, 2012, request from the state 

of Indiana to redesignate Lake and 

Porter Counties to attainment of the 

2008 ozone National Ambient Air 

Quality Standard (NAAQS or standard) 

because Indiana has not demonstrated 

that the Chicago-Naperville, IllinoisIndiana-Wisconsin (IL-IN-WI) ozone 

nonattainment area (Chicago 

nonattainment area), which includes 

Lake and Porter Counties, has attained 

this NAAQS. EPA is also disapproving 

Indiana’s ozone maintenance plan and 

Motor Vehicle Emission Budgets 

(MVEBs) for Volatile Organic 

Compounds (VOC) and Nitrogen Oxides 

(NOX), submitted with Indiana’s ozone 

redesignation request. 

DATES: This final rule is effective 

January 9, 2015. 

ADDRESSES: EPA has established a 

docket for this action: Docket ID No. 

EPA EPA–R05–OAR–2012–0989. All 


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73206 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Rules and Regulations 

1 In this case, the Chicago-Naperville, IL-IN-WI 

ozone nonattainment area for the 2008 eight-hour 

ozone NAAQS. This area is composed of Lake and 

Porter Counties in Indiana; Cook, DuPage, Kane, 

Lake, McHenry, and Will Counties, Aux Sable and 

Goose Lake Townships in Grundy County, and 

Oswego Township in Kendall County in Illinois; 

and the area east of and including the Interstate 94 

corridor in Kenosha County in Wisconsin. 

2As noted in the June 30, 2014, proposed rule, 

Chicago-Naperville, IL-IN-WI ozone nonattainment 

area has experienced a violation of the 2008 ozone 

standard for every three-year period from 2009 to 

2013. 3The leading clauses of section 107(d)(3)(E) refer 

to the ‘‘nonattainment area (or portion thereof).’’ In 

addition, the term ‘‘area’’ in subsections 

107(d)(3)(E)(ii), (iv), and (v) can be applied to a subportion of a nonattainment area, generally to a 

state’s portion of a multi-state nonattainment area. 

documents in the docket are listed on 

the 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 in 

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 Edward 

Doty, Environmental Scientist, at (312) 

886–6057 before visiting the Region 5 

office. 

FOR FURTHER INFORMATION CONTACT: 

Edward Doty, Environmental Scientist, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

U.S. Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6057, 

doty.edward@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

Table of Contents 

I. What is the background for this action? 

II. What comments did we receive on the 

proposed rule? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

The background for this action is 

discussed in detail in EPA’s June 30, 

2014, proposed rule (79 FR 36692). In 

that proposed rulemaking, we noted 

that, under EPA regulations at 40 CFR 

part 50, the 2008 ozone standard is 

violated when the three-year average of 

the annual fourth-highest daily 

maximum eight-hour ozone 

concentrations at any monitoring site in 

the subject area 1 is greater 0.075 parts 

per million parts of air (ppm). See 77 FR 

30088 (May 21, 2012) for further 

information regarding area designations 

for the 2008 ozone standard and 77 FR 

34221 (June 11, 2012) for information 

regarding the designation of the 

Chicago-Naperville, IL-IN-WI area for 

the 2008 ozone standard. See 40 CFR 

50.15 and appendix P to 40 CFR part 50 

regarding the ozone data requirements 

for a determination of whether an area 

has attained the 2008 ozone standard. 

Under section 107(d)(3)(E) of the Clean 

Air Act (CAA), EPA may redesignate a 

nonattainment area (or a portion 

thereof) to attainment if sufficient 

complete, quality-assured data are 

available to demonstrate that the 

nonattainment area as a whole has 

attained the standard and if all other 

requirements of section 107(d)(3)(E) 

have been met. 

The Indiana Department of 

Environmental Management (IDEM) 

submitted a request for the 

redesignation of Lake and Porter 

Counties to attainment of the 2008 

ozone standard on December 5, 2012. 

The redesignation request included 

summarized ozone data for all monitors 

in the Chicago-Naperville, IL-IN-WI 

ozone nonattainment area along with 

other information specific to Lake and 

Porter Counties to demonstrate that all 

requirements of section 107(d)(3)(E) of 

the CAA have been satisfied. The June 

30, 2014, proposed disapproval 

provides a detailed discussion of the 

ozone data for the period of 2006 

through 2013 (see tables 1 and 2 in the 

June 30, 2014, proposed rule at 79 FR 

36694), which show a violation of the 

2008 ozone standard in the ChicagoNaperville, IL-IN-WI area based on 

current, quality-assured ozone data. It 

does not, however, discuss in detail 

other components of Indiana’s submittal 

because EPA believes that Indiana failed 

to meet the most basic requirement for 

redesignation, a demonstration that the 

Chicago-Naperville, IL-IN-WI ozone 

nonattainment area has attained the 

2008 ozone standard. We proposed to 

disapprove Indiana’s ozone 

redesignation request based on the 

violation of the 2008 ozone standard, 

but we proposed no action on Indiana’s 

MVEBs and ozone maintenance 

demonstration for the 2008 ozone 

standard. 

II. What comments did we receive on 

the proposed rule? 

During the public comment period for 

the June 30, 2014, proposed rule, we 

received two sets of comments, which 

we summarize and address here. One 

set of comments was submitted by IDEM 

and the other set was submitted by an 

industrial corporation with a facility in 

Gary, Indiana. 

Comment 1: Both commenters 

objected to EPA’s proposed disapproval 

of Indiana’s ozone redesignation request 

based on violations of the 2008 ozone 

standard at several monitoring sites in 

the Chicago-Naperville, IL-IN-WI ozone 

nonattainment area, but outside of Lake 

and Porter Counties (no violations of the 

2008 ozone standard were recorded in 

Lake and Porter Counties), during the 

period of 2011–2013 (the most recent 

three-year period with quality-assured, 

state-certified ozone monitoring data).2

These objections are based on the 

commenters’ view that section 

107(d)(3)(E) of the CAA provides for the 

redesignation of a portion of a 

nonattainment area as well as for the 

entire nonattainment area. Both 

commenters contend that, since all 

monitors in Lake and Porter Counties 

have monitored attainment of the 2008 

ozone standard and since Indiana’s 

ozone redesignation request only 

applies to Lake and Porter Counties, 

EPA has erred in its interpretation of 

section 107(d)(3)(E) and in its insistence 

of judging Indiana’s redesignation 

request based on the current ozone data 

for all ozone monitors in the ChicagoNaperville, IL-IN-WI nonattainment 

area. 

IDEM makes two additional points in 

support of this comment. First, IDEM 

asserts that the plain language of section 

107(d)(3)(E) does not mandate that EPA 

use as a prerequisite for approval of a 

redesignation request that all monitors 

in a nonattainment area show 

attainment of the NAAQS. IDEM 

contends that EPA misreads section 

107(d)(3)(E) with regard to the word 

‘‘area’’ contained in subsection 

107(d)(3)(E)(i). IDEM argues that this 

subsection cannot be parsed from 

section 107(d)(3)(E) as a whole, and that 

a reading of section 107(d)(3)(E) as a 

whole shows that the word ‘‘area’’ in 

subsection 107(d)(3)(E)(i) may apply to 

a portion of the nonattainment area, as 

covered by the state’s redesignation 

request, in this case Lake and Porter 

Counties, since other subsections of 

section 107(d)(3)(E) and the lead-in 

clauses of section 107(d)(3)(E) (of 

general applicability to all of section 

107(d)(3)(E) and its subsections) can 

apply to a portion of the nonattainment 

area.3 IDEM cites two cases, Kokoszka v. 


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Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Rules and Regulations 73207 

Bellford, 417 U.S. 642, 650 (1974), and 

Dada v. Mukasey, 544 U.S. 1 (2008), for 

the principle that ‘‘When interpreting a 

statute, the court will not look merely to 

a particular clause in which general 

words may be used, but will take in 

connection with it the whole statute 

. . .’’. IDEM argues that this legal 

principle supports its view that 

interpretation of ‘‘the area’’ in 

subsection 107(d)(3)(E)(i) must be 

informed and modified by ‘‘a 

nonattainment area (or portion thereof)’’ 

as provided in the lead-in clauses of 

section 107(d)(3)(E). 

Second, IDEM cites EPA’s approval of 

the redesignation of Kentucky’s portion 

of the Cincinnati-Hamilton, OhioKentucky (OH-KY) nonattainment area 

to attainment of the 1990 ozone 

standard in further support of its 

position. IDEM notes that EPA approved 

a redesignation request for the Kentucky 

portion even though the Ohio portion of 

this ozone nonattainment area was 

denied redesignation. IDEM points out 

that in doing so, EPA interpreted the 

term ‘‘area’’ in subsection 

107(d)(3)(E)(ii) to mean a portion of the 

nonattainment area, rather than the 

nonattainment area as a whole. 

Similarly, IDEM notes that, in EPA’s 

subsequent final rule approving the 

redesignation of the Kentucky portion of 

the nonattainment area, EPA said that it 

had the authority to redesignate the 

Kentucky portion of the nonattainment 

area independent of whether Ohio had 

met all of the requirements for a fully 

approved State Implementation Plan 

(SIP) for its portion of the 

nonattainment area. IDEM believes that 

EPA’s interpretation of ‘‘area’’ in 

subsection 107(d)(3)(E)(ii) in the 

redesignation of the Kentucky portion of 

the Cincinnati-Hamilton, OH-KY 

nonattainment area is the correct 

interpretation and should apply to 

subsection 107(d)(3)(E)(i) to support the 

approval of Indiana’s ozone 

redesignation request for Lake and 

Porter Counties. 

Response 1: Section 107(d)(3)(E) of 

the CAA specifies five criteria for 

evaluating the adequacy of a state’s 

redesignation request. A key element of 

these criteria is contained in subsection 

107(d)(3)(E)(i), which requires that the 

Administrator (EPA) determine that 

‘‘the area has attained the national 

ambient air quality standard.’’ EPA has 

consistently interpreted ‘‘area’’ in this 

subsection to mean the entire 

nonattainment area and has required 

that all monitors in the subject 

nonattainment area have monitored 

attainment of the subject air quality 

standard. This is true for multi-state 

nonattainment areas, such as the 

Chicago-Naperville, IL-IN-WI 

nonattainment area, and for single state 

nonattainment areas. See, e.g., 77 FR 

6743, February 9, 2012, (proposed 

redesignation of the Illinois portion of 

the Chicago-Gary-Lake County, IL-IN 

nonattainment area for the 1997 ozone 

standard); 76 FR 79579, December 22, 

2011, (proposed redesignation of the 

Illinois portion of the St. Louis, 

Missouri-Illinois nonattainment area for 

the 1997 ozone standard); 72 FR 26759, 

May 11, 2007, (proposed redesignation 

of the Kentucky portion of the 

Huntington-Ashland, Kentucky-West 

Virginia nonattainment area for the 1997 

ozone standard); 72 FR 1474, January 

12, 2007, (proposed redesignation of the 

West Virginia portion of the 

Parkersburg-Marietta, West VirginiaOhio nonattainment area for the 1997 

ozone standard); and 75 FR 12090, 

March 12, 2010, (proposed 

redesignation of the Indiana portion of 

the Chicago-Gary-Lake County, IllinoisIndiana nonattainment area for the 1997 

ozone standard). 

The commenters assert that section 

107(d)(3)(E) criteria allow the 

redesignation of a portion of a 

nonattainment area. We agree with these 

commenters that EPA can, and has 

under certain circumstances, 

redesignated portions of a 

nonattainment area to attainment of the 

NAAQS while leaving other portions of 

the nonattainment area designated as 

nonattainment. See the above list of 

proposed rules for proposed partial area 

redesignations. However, regardless of 

whether EPA considers a redesignation 

of a part of a nonattainment area or the 

redesignation of an entire 

nonattainment area, EPA considers the 

air quality data for the entire 

nonattainment area to establish 

compliance with the air quality 

requirements of subsection 

107(d)(3)(E)(i). EPA has consistently 

taken this approach because to do 

otherwise could result in the stripping 

of source areas that are otherwise 

attaining the NAAQS away from the 

remainder of a nonattainment area that 

continues to violate the NAAQS. This 

would clearly undermine the CAA’s 

intent for nonattainment areas to 

include both the violating areas and the 

source areas that contribute to the 

violations of the NAAQS, as expressed 

in subsection 107(d)(1)(A)(i) of the CAA. 

Redesignating portions of 

nonattainment areas when the areas, as 

wholes, are not attaining the NAAQS 

would also interfere with the CAA’s 

emission control requirements that are 

designed to bring the nonattainment 

areas back into attainment of the 

NAAQS by controlling emissions in 

source areas within the nonattainment 

areas. 

EPA disagrees with IDEM that the 

CAA compels EPA to interpret the word 

‘‘area’’ in subsection 107(d)(3)(E)(i) to 

mean a nonattainment area or a portion 

of a nonattainment area. The language of 

section 107(d)(3)(E) and its subsections, 

read with the CAA as a whole, does not 

lend itself to a clear and unambiguous 

interpretation of the term ‘‘area’’ in 

subsection 107(d)(3)(E)(i). 

IDEM argues that EPA must interpret 

‘‘area’’ in subsection 107(d)(3)(E)(i) in 

light of the CAA as a whole. EPA agrees, 

and believes that, contrary to IDEM’s 

position, this legal principle supports 

EPA’s reading of the statute. As noted 

above, if EPA were to interpret ‘‘area’’ 

in subsection 107(d)(3)(E)(i) to permit 

the agency to approve a redesignation 

where the air quality standard was not 

being attained in all portions of the 

nonattainment area, the agency would 

contravene Congress’ intent that 

nonattainment areas include not only 

areas that do not meet the air quality 

standard but also areas ‘‘that contribute 

[ ] to ambient air quality in a nearby 

area that does not meet’’ the standard. 

42 U.S.C. 7407(d)(1)(A)(i). Interpreting 

the statute in the manner suggested by 

IDEM would allow a portion of a 

nonattainment area, which itself is not 

violating the NAAQS but is contributing 

to nonattainment in that area, to be 

redesignated to attainment immediately 

after being designated as part of the 

nonattainment area under CAA 

subsection 107(d)(1)(A)(i) if the state 

could demonstrate compliance with the 

provisions of subsections 

107(d)(3)(E)(ii)–(v). This is not a 

reasonable reading of the statute, and 

thus EPA disagrees with IDEM that, in 

reading the statute as a whole, the word 

‘‘area’’ in subsection 107(d)(3)(E)(i) 

should be interpreted to include ‘‘a 

portion of the nonattainment area.’’ 

In fact, the requested redesignation at 

issue illustrates precisely the 

hypothetical example set out above. On 

June 11, 2012, EPA finalized its 

designation of Lake and Porter Counties 

as part of the Chicago-Naperville, IL-INWI ozone nonattainment area (77 FR 

34221). EPA explained in that rule that 

Lake and Porter Counties were included 

in the ozone nonattainment area 

designation based on their emissions 

and contribution to high ozone 

concentrations in other parts of the 

nonattainment area. See EPA’s final 

technical support document (TSD) for 

the designation of the ChicagoNaperville, IL-IN-WI area (available at 

http://www.epa.gov/ozonedesignations/ 

2008standards/documents/ 


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73208 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Rules and Regulations 

4 Mississippi Commission on Environmental 

Quality, et al. v. EPA (D.C. Cir. No. 12–1309 and 

consolidated cases). 

R5_Chicago_TSD_Final.pdf). In 

particular, in the TSD, EPA noted that 

Lake and Porter Counties account for 

10.4 percent of the total VOC emissions 

and 18.8 percent of the total NOX

emissions for the entire Chicago 

consolidated statistical area. Id. at 9. In 

the TSD, EPA also noted that other 

county-specific factors, including 

population levels, traffic levels (vehicle 

miles of travel), and meteorology during 

high ozone days in the ChicagoNaperville, IL-IN-WI area also supported 

the inclusion of Lake and Porter 

Counties in the Chicago-Naperville, ILIN-WI ozone nonattainment area for the 

2008 ozone standard. 

In the designations process, Indiana 

objected to the inclusion of Lake and 

Porter Counties in the ozone 

nonattainment area, and EPA responded 

to those comments. See EPA’s 

‘‘ADDENDUM to Response to 

Significant Comments on the State and 

Tribal Designation Recommendations 

for the 2008 Ozone National Ambient 

Air Quality Standards (NAAQS) for 

Section 3.2.5.1. Chicago-Naperville, ILIN-WI area’’ (RTC Addendum), 

(available at http://www.epa.gov/ 

ozonedesignations/2008standards/ 

documents/20120531chicagortc.pdf). In 

both the TSD and the RTC Addendum, 

EPA discussed ozone modeling analyses 

conducted by the Lake Michigan Air 

Directors Consortium (LADCO) that 

demonstrate that Lake and Porter 

Counties’ ozone precursor emissions 

significantly contributed to high ozone 

levels at the Zion, Illinois monitoring 

site (the worst-case ozone design value 

monitoring site considered during ozone 

designation process for the ChicagoNaperville, IL-IN-WI area) during the 

high ozone days modeled by LADCO 

(TSD at 17–19 and RTC Addendum at 

10–12). 

EPA’s inclusion of Lake and Porter 

Counties as part of the ChicagoNaperville, IL-IN-WI ozone 

nonattainment area for the 2008 ozone 

standard is also consistent with section 

107(d)(1) of the CAA and EPA’s 

interpretation of the statute as it 

pertains to ozone designations as 

expressed in a December 4, 2008, EPA 

policy memorandum (‘‘Area 

Designations for the 2008 Revised 

Ozone National Ambient Air Quality 

Standards,’’ from Robert J. Meyers, 

Principal Deputy Assistant 

Administrator, to Regional 

Administrators, Regions I–X). As noted 

in that memorandum, because 

‘‘[g]round-level ozone and ozone 

precursor emissions are pervasive and 

readily transported . . . EPA believes it 

is important to examine ozonecontributing emissions across a 

relatively broad geographic area.’’ Id. at 

3. 

Indiana requested redesignation of the 

Lake and Porter Counties portion of the 

Chicago-Naperville, IL-IN-WI 

nonattainment area in December 2012, 

six months after the initial designation 

of the nonattainment area was finalized. 

The state’s request is based on the same 

years of air quality data that were used 

to designate the area nonattainment. 

Thus, interpreting ‘‘area’’ in section 

107(d)(3)(E) as IDEM suggests would 

have the effect of immediately reversing 

the designation of the nonattainment 

area, an outcome that Congress could 

not have intended. Indiana has objected 

to the inclusion of Lake and Porter 

Counties in the Chicago nonattainment 

area and it has filed a petition for 

judicial review of that decision.4 The 

redesignation process, however, is not 

the proper forum in which to challenge 

EPA’s designation decisions. 

IDEM’s assertion that EPA’s 

redesignation of the Kentucky portion of 

the Cincinnati-Hamilton, OH-KY 

nonattainment area for the 1990 ozone 

standard is inconsistent with EPA’s 

action here is also mistaken. In that 

redesignation, EPA clearly considered 

ozone data for all ozone monitoring sites 

in the entire Cincinnati-Hamilton 

nonattainment area, and not just for the 

portion of the area that was being 

redesignated, in determining that the 

Kentucky portion of the area had met 

the criteria for redesignation. 65 FR 

3630 (January 24, 2000) and 65 FR 

37879 (June 19, 2000). IDEM accurately 

notes that EPA interpreted the word 

‘‘area’’ for purposes of subsection 

107(d)(3)(E)(ii) to mean the statespecific portion of the nonattainment 

area in the Cincinnati-Hamilton 

redesignation, consistent with EPA’s 

long-standing interpretation of that 

provision. 

EPA acknowledges that the meaning 

of the word ‘‘area’’ in section 

107(d)(3)(E) is ambiguous. In the 

Cincinnati-Hamilton redesignation cited 

by IDEM, and in other actions, EPA has 

consistently interpreted the word ‘‘area’’ 

in subsections 107(d)(3)(E)(ii), (iv), and 

(v) to include the single-state portions of 

multi-state nonattainment areas in 

addition to entire nonattainment areas 

seeking redesignation. Subsection 

107(d)(3)(E)(ii) requires that an area 

have a fully approved applicable SIP, 

subsection 107(d)(3)(E)(iv) requires that 

an area have a fully approved 

maintenance plan, and subsection 

107(d)(3)(E)(v) requires an area to have 

met all applicable requirements under 

section 110 and part D. These 

subsections are distinguishable from 

subsection 107(d)(3)(E)(i) in that 

interpreting ‘‘area’’ in these subsections 

to include a single-state portion of a 

multi-state area does not interfere with 

any other requirement of the CAA. 

Furthermore, EPA interprets ‘‘area’’ in 

subsections 107(d)(3)(E)(ii), (iv), and (v) 

to include portions of nonattainment 

areas because those provisions all relate 

to SIP revision requirements, and each 

state is independently responsible for 

obtaining approval of the applicable SIP 

provisions for redesignation. 

EPA does not think it is necessary to 

require one state to wait for another 

state to complete its SIP actions before 

becoming eligible for redesignation if 

the nonattainment area as a whole is 

attaining the NAAQS. On the other 

hand, although EPA will determine that 

a state containing a portion of a multistate nonattainment area has satisfied 

subsection 107(d)(3)(E)(iv) where only 

that state has submitted a fully 

approved maintenance plan, EPA 

requires as a matter of course that the 

state communicate with the other states 

governing the multi-state nonattainment 

area and demonstrate projected 

maintenance of the NAAQS in the other 

portions of the nonattainment area, even 

in the absence of fully approved 

maintenance plans from those other 

states. EPA has, therefore, been 

consistent in interpreting ‘‘area’’ in 

107(d)(3)(E) to mean the entire 

nonattainment area with respect to air 

quality concerns, even where the 

Agency has interpreted the term ‘‘area’’ 

to include single-state portions of multistate nonattainment areas when the 

requirement is limited to SIP 

submission and processing. 

In conclusion, EPA believes that 

interpreting the word ‘‘area’’ in 

subsection 107(d)(3)(E)(i) to mean a 

portion of a nonattainment area 

contravenes the CAA mandate in 

subsection 107(d)(1)(A)(i) for the 

nonattainment area to include both the 

violating areas and the source areas that 

contribute to the violations of the 

NAAQS. Even if EPA believed that it 

could redesignate a portion of an area 

when another portion of the area is 

violating the NAAQS, we would decline 

to take that approach as a policy matter 

because we believe that our current 

interpretation of subsection 

107(d)(3)(E)(i) is most protective of 

human health and the environment. 

Comment 2: IDEM requests that EPA 

re-evaluate Indiana’s December 5, 2012, 

redesignation request in total, after 

consideration of its arguments as 

summarized in comment 1, to determine 


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Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Rules and Regulations 73209 

whether the request as a whole 

conforms to the requirements of section 

107(d)(3)(D). 

Response 2: As explained in response 

to Comment 1 above, we disagree with 

IDEM’s interpretation of ‘‘area’’ in 

subsection 107(d)(3)(E)(i) and have 

determined that this subsection requires 

attainment of the 2008 ozone standard 

in the entire Chicago-Naperville, IL-INWI nonattainment area. Since the 2008 

ozone standard has not been attained in 

the entire nonattainment area, as 

evidenced by the ozone monitoring data 

summarized in the June 30, 2014, 

proposed rule (see tables 1 and 2 at 79 

FR 36692, 36694–36695), we conclude 

that the Chicago-Naperville, IL-IN-WI 

area and Indiana’s ozone redesignation 

request for Lake and Porter Counties 

have not met the most basic requirement 

for redesignation, attainment of the 2008 

ozone NAAQS. 

Since attainment of the NAAQS is a 

prerequisite for development of an 

acceptable attainment emissions 

inventory (and the MVEBs derived 

thereof) and for demonstrations of 

maintenance, we cannot approve these 

components of Indiana’s ozone 

redesignation request for Lake and 

Porter Counties. In our June 30, 2014, 

proposed rule, we explained that rather 

than acting on these components of 

Indiana’s redesignation request, which 

would almost certainly have resulted in 

proposed disapproval on the grounds of 

the failure of the Chicago-Naperville, ILIN-WI area to attain the 2008 ozone 

standard, we chose to take no action on 

these components (79 FR 36692, 36696). 

In so doing, we explained that an 

approvable ozone maintenance plan 

must contain an ozone attainment 

emissions inventory documenting VOC 

and NOX emissions for the period in 

which the area has attained the ozone 

standard. We concluded that ‘‘[s]ince 

the Chicago ozone nonattainment area 

continues to violate the 2008 eight-hour 

ozone standard, we cannot conclude 

that Indiana has developed an 

acceptable attainment year emissions 

inventory. This means that the ozone 

maintenance demonstration portion of 

the ozone maintenance plan is 

unacceptable.’’ Id. Similarly, with 

regard to Indiana’s proposed MVEBs for 

VOCs and NOX, we explained that 

‘‘since the estimation of the VOC and 

NOX MVEBs depends on the 

determination of mobile source 

emissions that, along with other 

emissions in the nonattainment area, 

provide for attainment of the ozone 

standard, and since the Chicago 

nonattainment area continues to violate 

the 2008 eight-hour ozone standard, we 

conclude that Indiana’s estimates of the 

VOC and NOX MVEBs are also not 

acceptable.’’ Id. 

Subsequently, IDEM submitted its 

comment requesting that we take action 

on the remaining components of its 

submittal in light of our re-evaluation of 

our interpretation of ‘‘area’’ in 

subsection 107(d)(3)(E)(i). We had 

proposed to take no action on those 

remaining components; but based on 

our earlier findings that those 

components are not approvable and on 

IDEM’s comment urging us to take 

action on its request as a whole, we now 

conclude that we cannot approve the 

remaining portions of Indiana’s 

request—its maintenance plan and its 

proposed MVEBs. As a result, we are in 

this action disapproving these 

remaining portions of Indiana’s 

submission. We believe this disapproval 

is a logical outgrowth of our proposal, 

because we included in that notice not 

only our explanation for why these 

elements were not approvable, but also 

indicated that ‘‘if we were to propose 

actions on these ozone redesignation 

request elements, we would find it 

necessary to propose disapproval.’’ 79 

FR 36692, 36696. We believe this 

alerted commenters that we were 

considering disapproval of the 

maintenance plan and MVEBs. 

Therefore, we are determining that the 

MVEBs and ozone maintenance plan 

included with Indiana’s ozone 

redesignation request must be 

disapproved on the basis that the 

Chicago-Naperville, IL-IN-WI area 

continues to violate the 2008 ozone 

NAAQS. 

Comment 3: The corporate commenter 

asserted that EPA’s failure to 

redesignate the portions of 

nonattainment areas that meet the 

NAAQS unnecessarily burdens 

economic development in such areas. 

The commenter objected to the 

implementation of (nonattainment) New 

Source Review (NSR) requirements in 

these areas on the basis that such 

implementation unjustly burdens the 

sources in these areas. 

Response 3: Since the ChicagoNaperville, IL-IN-WI area continues to 

violate the 2008 ozone standard, it is 

imperative that NSR continue to be 

applied in all parts of the nonattainment 

area to avoid exacerbation of the 

existing ozone air quality problem. The 

‘‘attainment’’ portions of nonattainment 

areas that the commenter refers to are in 

this case source areas contributing to 

violations of the NAAQS in other 

portions of the nonattainment area. See 

also our response to Comment 1, above. 

Therefore, it is inappropriate to 

redesignate the attaining portions of the 

nonattainment areas and to remove NSR 

requirements, including new source 

offsets, in these attaining portions while 

violations of the NAAQS continue in 

other portions of the nonattainment 

areas. 

III. What action is EPA taking? 

We are disapproving a December 5, 

2012, request from the state of Indiana 

to redesignate Lake and Porter Counties 

to attainment of the 2008 ozone NAAQS 

because Indiana has not demonstrated 

that the Chicago-Naperville, IL-IN-WI 

ozone nonattainment area, which 

includes Lake and Porter Counties, has 

attained this NAAQS, as required by 

subsection 107(d)(3)(E)(i) of the CAA. 

EPA is also disapproving Indiana’s 

ozone maintenance plan and MVEBs, 

submitted with Indiana’s ozone 

redesignation request, because Indiana 

has failed to successfully present 

MVEBs and an ozone maintenance plan 

which reflect attainment and 

maintenance of the 2008 ozone standard 

in the Chicago-Naperville, IL-IN-WI 

ozone nonattainment area as evidenced 

by the continued violation of this ozone 

standard in this ozone nonattainment 

area. 

IV. Statutory and Executive Order 

Reviews 

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. 

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.). 

Regulatory Flexibility Act 

This action merely disapproves state 

law as not meeting Federal requirements 

and imposes no additional requirements 

beyond those imposed by state law. 

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 disapproves preexisting 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 


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73210 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Rules and Regulations 

described in the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4). 

Executive Order 13132: Federalism 

This action also does not have 

Federalism implications because it does 

not have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

disapproves a state rule, and does not 

alter the relationship or the distribution 

of power and responsibilities 

established in the CAA. 

Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This rule 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), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

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 disapproves 

a state rule. 

Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Because it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 or a ‘‘significant energy 

action,’’ this action is also not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

National Technology Transfer 

Advancement Act 

In reviewing state submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the CAA. 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 state submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a state 

submission, to use VCS in place of a 

state submission that otherwise satisfies 

the provisions of the CAA. 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. 

Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

action. In reviewing SIP submissions, 

EPA’s role is to approve or disapprove 

state choices, based on the criteria of the 

CAA. Accordingly, this action merely 

disapproves certain state requirements 

for inclusion into the SIP under section 

110 and subchapter I, part D of the CAA 

and will not in-and-of itself create any 

new requirements. Accordingly, it 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. 

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 CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 9, 2015. 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 its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Ozone, Volatile organic 

compounds. 

Dated: November 25, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.777 is amended by 

adding paragraph (ss), to read as 

follows: 

§ 52.777 Control strategy: photochemical 

oxidents (hydrocarbons). 

* * * * * 

(ss) Disapproval. EPA is disapproving 

Indiana’s December 5, 2012, ozone 

redesignation request for Lake and 

Porter Counties for the 2008 ozone 

standard. EPA is also disapproving 

Indiana’s motor vehicle emission 

budgets and ozone maintenance plan 

submitted with the redesignation 

request. 

[FR Doc. 2014–28799 Filed 12–9–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2014–0601; FRL–9918–88] 

Alpha-cypermethrin; Pesticide 

Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes a 

tolerance for residues of alphacypermethrin in or on food 


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