Federal Register / Vol. 72, No. 88 / Tuesday, May 8, 2007 / Proposed Rules 26057 

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 proposed 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.). Because this rule 

proposes to approve 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). This proposed 

rule also does 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), nor will 

it 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), because it merely 

proposes to affect the status of a 

geographical area, does not impose any 

new requirements on sources, or allow 

the state to avoid adopting or 

implementing other requirements, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997), because it 

approves a state rule implementing a 

Federal standard. 

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 and 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. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this proposed rule, EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct. EPA 

has complied with Executive Order 

12630 (53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’’ issued under the executive 

order. This rule proposing to approve 

the redesignation of the Tioga Area to 

attainment for the 8-hour ozone 

NAAQS, the associated maintenance 

plan, the 2002 base year inventory, and 

the MVEBs identified in the 

maintenance plan, does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen Oxides, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness areas. 

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

Dated: April 26, 2007. 

Judith Katz, 

Acting Regional Administrator, Region III. 

[FR Doc. E7–8669 Filed 5–7–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2006–0715; FRL–8310–9] 

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 Nonattainment Area 

to Attainment for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On November 15, 2006, the 

Indiana Department of Environmental 

Management (IDEM) submitted a 

request to redesignate the Indiana 

portion of the Louisville 8-hour ozone 

National Ambient Air Quality Standard 

(NAAQS) nonattainment area (Clark and 

Floyd Counties) to attainment for the 8- 

hour ozone NAAQS, and a request for 

EPA approval of a 14-year maintenance 

plan for Clark and Floyd Counties. 

Today, EPA is making a determination 

that the Indiana portion of the 

Louisville 8-hour ozone nonattainment 

area 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. 

EPA is proposing to approve the request 

to redesignate Clark and Floyd Counties 

to attainment of the 8-hour ozone 

standard based on its determination that 

the Louisville 8-hour ozone 

nonattainment area has met the criteria 

for redesignation to attainment specified 

in the Clean Air Act (CAA). EPA is also 

proposing to approve Indiana’s 

maintenance plan which adequately 

supports continued attainment through 

2020 and, for purposes of transportation 

conformity, the Volatile Organic 

Compounds (VOC) and Nitrogen Oxides 

(NOX) Motor Vehicle Emission Budgets 

(MVEBs) for the year 2003 and 2020. 

DATES: Comments must be received on 

or before June 7, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05–

OAR–2006–0715, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: mooney.john@epa.gov. 

• Fax: (312) 886–5824. 

• Mail: John M. Mooney, Chief, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

• Hand Delivery: John M. Mooney, 

Chief, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office’s official hours of 

operation are Monday through Friday, 

8:30 a.m. to 4:30 p.m. excluding Federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2006–


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26058 Federal Register / Vol. 72, No. 88 / Tuesday, May 8, 2007 / Proposed Rules 

1This standard is violated in an area when any 

ozone monitor in the area (or in its impacted 

downwind environs) records 8-hour ozone 

concentrations with an average of the annual 

fourth-highest daily maximum 8-hour ozone 

concentrations over a three-year period equaling or 

exceeding 85 ppb. 40 CFR 50.10. 

2The 8-hour ozone design value and the 1-hour 

ozone design value for each area were not 

necessarily recorded at the same monitoring site. 

The worst-case monitoring site for each ozone 

concentration averaging time was considered for 

each area. 

0715. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI, or otherwise 

protected, through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov website is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters and any form of 

encryption, and should be free of any 

defects or viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in 

hardcopy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hardcopy 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. It is 

recommended 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–18), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6052, 

rosenthal.steven@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

the EPA. This supplementary 

information section is arranged as 

follow: 

I. What Action Is EPA Proposing to Take? 

II. What Is the Background for This Action? 

III. What Are the Criteria for Redesignation 

to Attainment? 

IV. What Are EPA’s Analyses of the State’s 

Redesignation Request and What Are the 

Bases for EPA’s Proposed Action? 

V. Has Indiana Adopted Acceptable Motor 

Vehicle Emissions Budgets for the End of 

the 14-Year Maintenance Plan Which 

Can Be Used To Support Conformity 

Determinations? 

VI. What Is the Effect of EPA’s Proposed 

Action? 

VII. Statutory and Executive Order Reviews 

I. What Action Is EPA Proposing to 

Take? 

We are proposing to take several 

related actions for the Indiana portion of 

the Louisville 8-hour nonattainment 

area (Clark and Floyd Counties). First, 

we are proposing to determine that 

Clark and Floyd Counties have attained 

the 8-hour ozone NAAQS based on air 

quality for the period of 2003 through 

2005. Second, we are proposing to 

approve Indiana’s ozone maintenance 

plan for Clark and Floyd Counties as a 

revision of the Indiana SIP. The 

maintenance plan is designed to keep 

Clark and Floyd Counties in attainment 

of the 8-hour ozone standard 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. As supported by and 

consistent with the ozone maintenance 

plan, we are also proposing to approve 

the 2003 and the 2020 VOC and NOX

MVEBs for the Louisville area for 

transportation conformity purposes. We 

are also proposing to approve the 

request from the State of Indiana to 

change the designation of Clark and 

Floyd Counties from nonattainment to 

attainment of the 8-hour ozone NAAQS. 

We have determined that Indiana and 

Clark and Floyd Counties have met the 

requirements for redesignation to 

attainment under section 107(d)(3)(E) of 

the Clean Air Act (CAA). 

II. What Is the Background for This 

Action? 

A. General Background Information 

EPA has determined that ground-level 

ozone is detrimental to human health. 

On July 18, 1997, EPA promulgated an 

8-hour ozone NAAQS of 0.08 parts per 

million parts of air (0.08 ppm) (80 parts 

per billion (ppb)) (62 FR 38856).1 This 

8-hour ozone standard replaced a prior 

1-hour ozone NAAQS, which had been 

promulgated on February 8, 1979 (44 FR 

8202), and which was revoked on June 

15, 2005 (69 FR 23858). 

Ground-level ozone is not emitted 

directly by sources. Rather, emitted NOX

and VOC react in the presence of 

sunlight to form ground-level ozone 

along with other secondary compounds. 

NOX and VOC are referred to as ‘‘ozone 

precursors.’’ Control of ground-level 

ozone concentrations is achieved 

through controlling VOC and NOX

emissions. 

The CAA required EPA to designate 

as nonattainment any area that violated 

the 8-hour ozone NAAQS. The Federal 

Register notice promulgating these 

designations and classifications was 

published on April 30, 2004 (69 FR 

23857). 

The CAA contains two sets of 

provisions—subpart 1 and subpart 2—

that address planning and emission 

control requirements for nonattainment 

areas. Both are found in title I, part D 

of the CAA. Subpart 1 contains general, 

less prescriptive requirements for all 

nonattainment areas for any pollutant 

governed by a NAAQS. Subpart 2 

contains more specific requirements for 

certain ozone nonattainment areas, and 

applies to ozone nonattainment areas 

classified under section 181 of the CAA. 

In the April 30, 2004, designation 

rulemaking, EPA divided 8-hour ozone 

nonattainment areas into the categories 

of subpart 1 nonattainment (‘‘basic’’

nonattainment) and subpart 2 

nonattainment (‘‘classified’’

nonattainment). EPA based this division 

on the area’s 8-hour ozone design values 

(i.e., on the three-year averages of the 

annual fourth-highest daily maximum 8- 

hour ozone concentrations at the worstcase monitoring sites in the areas) and 

on their 1-hour ozone design values 

(i.e., on the fourth-highest daily 

maximum 1-hour ozone concentrations 

over the three-year period at the worstcase monitoring sites in the areas).2 EPA 

classified 8-hour ozone nonattainment 

areas with 1-hour ozone design values 

equaling or exceeding 121 ppb as 


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3Clean Air Act section 176(c)(4)(E) currently 

requires States to submit revisions to their SIPs to 

reflect certain Federal criteria and procedures for 

determining transportation conformity. 

Transportation conformity SIPs are different from 

the motor vehicle emissions budgets that are 

established in control strategy SIPs and 

maintenance plans. 

subpart 2, classified nonattainment 

areas. EPA classified all other 8-hour 

nonattainment areas as subpart 1, basic 

nonattainment areas. The basis for area 

classification was explained in a 

separate April 30, 2004 final rule (the 

Phase 1 implementation rule) (69 FR 

23951). 

Emission control requirements for 

classified nonattainment areas are 

linked to area classifications. Areas with 

more serious ozone pollution problems 

are subject to more prescribed 

requirements and later attainment dates. 

The prescribed emission control 

requirements are designed to bring areas 

into attainment by their specified 

attainment dates. 

In the April 30, 2004 ozone 

designation/classification rulemaking, 

EPA designated the Louisville 

nonattainment area, including Clark and 

Floyd Counties as a subpart 1 basic 

nonattainment area for the 8-hour ozone 

NAAQS. EPA based the designation on 

ozone data collected during the 2001–

2003 period. 

On November 15, 2006, the State of 

Indiana requested redesignation of Clark 

and Floyd Counties to attainment of the 

8-hour ozone NAAQS based on ozone 

data collected in these counties from 

2003–2005. 

B. What Is the Impact of the December 

22, 2006 United States Court of Appeals 

Decision Regarding EPA’s Phase 1 

Implementation Rule? 

1. Summary of Court Decision 

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). The Court held that 

certain provisions of EPA’s Phase 1 Rule 

were inconsistent with the requirements 

of the Clean Air Act. The Court rejected 

EPA’s reasons for implementing the 

8-hour standard in nonattainment areas 

under Subpart 1 in lieu of subpart 2 of 

Title I, part D of the Act. The Court also 

held that EPA improperly failed to 

retain four measures required for 1-hour 

nonattainment areas under the antibacksliding provisions of the 

regulations: (1) Nonattainment area New 

Source Review (NSR) requirements 

based on an area’s 1-hour nonattainment 

classification; (2) Section 185 penalty 

fees for 1-hour severe or extreme 

nonattainment areas; (3) measures to be 

implemented pursuant to section 

172(c)(9) or 182(c)(9)of the Act, on the 

contingency of an area not making 

reasonable further progress toward 

attainment of the 1-hour NAAQS, or for 

failure to attain that NAAQS; and (4) 

certain conformity requirements for 

certain types of Federal actions. The 

Court upheld EPA’s authority to revoke 

the 1-hour standard provided there were 

adequate anti-backsliding provisions. 

This section sets forth EPA’s views on 

the potential effect of the Court’s ruling 

on this redesignation action. For the 

reasons set forth below, EPA does not 

believe that the Court’s ruling alters any 

requirements relevant to this 

redesignation action so as to preclude 

redesignation, and does not prevent 

EPA from finalizing this redesignation. 

EPA believes that the Court’s decision, 

as it currently stands or as it may be 

modified based upon any petition for 

rehearing that has been filed, imposes 

no impediment to moving forward with 

redesignation of this area to attainment, 

because in either circumstance 

redesignation is appropriate under the 

relevant redesignation provisions of the 

Act and longstanding policies regarding 

redesignation requests. 

2. Requirements Under the 8-Hour 

Standard 

With respect to the 8-hour standard, 

the Court’s ruling rejected EPA’s reasons 

for classifying areas under Subpart 1 for 

the 8-hour standard, and remanded that 

matter to the Agency. Consequently, it 

is possible that this area could, during 

a remand to EPA, be reclassified under 

Subpart 2. Although any future decision 

by EPA to classify this area under 

Subpart 2 might trigger additional future 

requirements for the area, EPA believes 

that this does not mean that 

redesignation cannot now go forward. 

This belief is based upon (1) EPA’s 

longstanding policy of evaluating State 

submissions in accordance with the 

requirements due at the time the request 

is submitted; and, (2) consideration of 

the inequity of applying retroactively 

any future requirements. 

First, at the time the redesignation 

request was submitted, Clark and Floyd 

Counties (and the entire Louisville area) 

were classified under Subpart 1 and 

were obligated to meet Subpart 1 

requirements. Under EPA’s 

longstanding interpretation of section 

107(d)(3)(E) of the Clean Air Act, to 

qualify for redesignation, states 

requesting redesignation to attainment 

must meet only the relevant SIP 

requirements that came due prior to the 

submittal of a complete redesignation 

request. September 4, 1992, Calcagni 

memorandum (‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division) See also 

Michael Shapiro Memorandum, 

September 17, 1993, and 60 FR 12459, 

12465–66 (March 7, 1995) 

(Redesignation of Detroit-Ann Arbor). 

See Sierra Club v. EPA, 375 F.3d 537 

(7th Cir. 2004), which upheld this 

interpretation. See, e.g. also 68 FR 

25418, 25424, 25427 (May 12, 2003) 

(redesignation of St. Louis). 

Moreover, it would be inequitable to 

retroactively apply any new SIP 

requirements that were not applicable at 

the time the request was submitted. The 

DC Circuit has recognized the inequity 

in such retroactive rulemaking, See 

Sierra Club v. Whitman, 285 F.3d 63 

(DC Cir. 2002), in which the DC Circuit 

upheld a District Court’s ruling refusing 

to make retroactive an EPA 

determination of nonattainment that 

was past the statutory due date. Such a 

determination would have resulted in 

the imposition of additional 

requirements on the area. The Court 

stated: ‘‘Although EPA failed to make 

the nonattainment determination within 

the statutory time frame, Sierra Club’s 

proposed solution only makes the 

situation worse. Retroactive relief would 

likely impose large costs on the States, 

which would face fines and suits for not 

implementing air pollution prevention 

plans in 1997, even though they were 

not on notice at the time.’’ Id. at 68. 

Similarly here it would be unfair to 

penalize the area by applying to it for 

purposes of redesignation additional SIP 

requirements under Subpart 2 that were 

not in effect at the time it submitted its 

redesignation request. 

3. Requirements Under the 1-Hour 

Standard 

With respect to the requirements 

under the 1-hour standard, Clark and 

Floyd Counties were attainment areas 

subject to a Clean Air Act section 175A 

maintenance plan under the 1-hour 

standard. The Court’s ruling does not 

impact redesignation requests for these 

types of areas. 

First, there are no conformity 

requirements that are relevant for 

redesignation requests for any standard, 

including the requirement to submit a 

transportation conformity SIP 3. Under 

longstanding EPA policy, EPA believes 

that it is reasonable to interpret the 

conformity SIP requirement as not 

applying for purposes of evaluating a 

redesignation request under section 


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4The worst-case monitoring site-specific ozone 

design value in the area or in its affected downwind 

environs. 

107(d) because state conformity rules 

are still required after redesignation and 

Federal conformity rules apply where 

state rules have not been approved. 40 

CFR 51.390. See Wall v. EPA, 265 F.3d 

426 (6th Cir. 2001), upholding this 

interpretation. See also 60 FR 62748 

(Dec. 7, 1995) (Tampa, FL 

redesignation). Federal transportation 

conformity regulations apply in all 

States prior to approval of 

transportation conformity SIPs. The 

1-hour ozone areas in Indiana were 

redesignated to attainment without 

approved State transportation 

conformity regulations because the 

Federal regulations were in effect in 

Indiana. When challenged, these 1-hour 

ozone redesignations, which were 

approved without State regulations, 

were upheld by the courts. See Wall v. 

EPA, 265 F.3d 426 (6th Cir. 2001). See 

also 60 FR 62748 (December 7, 1995) 

(Tampa, Florida). Although Indiana 

does not have approved State 

transportation conformity regulations, it 

has developed memoranda of 

understanding, signed by all parties 

involved in conformity, to address 

conformity consultation procedures. 

The Federal transportation conformity 

regulations, which apply in Indiana, 

require the approved 

1-hour ozone budgets to be used for 

transportation conformity purposes 

prior to 8-hour ozone budgets being 

approved. 

Second, with respect to the three 

other anti-backsliding provisions for the 

1-hour standard that the Court found 

were not properly retained, Clark and 

Floyd Counties are attainment areas 

subject to a maintenance plan for the 

1-hour standard, and the NSR, 

contingency measure (pursuant to 

section 172(c)(9) or 182(c)(9)) and fee 

provision requirements no longer apply 

to an area that has been redesignated to 

attainment of the 1-hour standard. 

Thus, the decision in South Coast 

should not alter requirements that 

would preclude EPA from finalizing the 

redesignation of this area. 

III. What Are the Criteria for 

Redesignation to Attainment? 

The CAA provides the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

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

redesignation provided that: (1) The 

Administrator determines that the area 

has attained the applicable NAAQS; (2) 

the Administrator has fully approved an 

applicable state implementation plan for 

the area under section 110(k) of the 

CAA; (3) the Administrator determines 

that the improvement in air quality is 

due to permanent and enforceable 

emission reductions resulting from 

implementation of the applicable SIP, 

Federal air pollution control 

regulations, and other permanent and 

enforceable emission reductions; (4) the 

Administrator has fully approved a 

maintenance plan for the area meeting 

the requirements of section 175A of the 

CAA; and (5) the state containing the 

area has met all requirements applicable 

to the area under section 110 and part 

D of the CAA. 

EPA provided guidance on 

redesignations in the General Preamble 

for the Implementation of Title I of the 

CAA Amendments of 1990 on April 16, 

1992 (57 FR 13498), and supplemented 

this guidance on April 28, 1992 (57 FR 

18070). The two main policy guidelines 

affecting the review of ozone 

redesignation requests are the following: 

‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, September 4, 1992 (September 

4, 1992 Calcagni memorandum); and, 

‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National 

Ambient Air Quality Standard,’’

Memorandum from John S. Seitz, 

Director, Office of Air Quality Planning 

and Standards, May 10, 1995. For 

additional policy guidelines used in the 

review of ozone redesignation requests, 

see our proposed rule for the 

redesignation of the Evansville, Indiana 

ozone nonattainment area at 70 FR 

53606 (September 9, 2005). 

IV. What Are EPA’s Analyses of the 

State’s Redesignation Request and 

What Are the Bases for EPA’s Proposed 

Action? 

EPA is proposing to: (1) Determine 

that Clark and Floyd Counties have 

attained the 8-hour ozone standard; (2) 

approve the ozone maintenance plan for 

Clark and Floyd Counties and the VOC 

and NOX MVEBs supported by this 

maintenance plan; and (3) approve the 

redesignation of Clark and Floyd to 

attainment of the 8-hour ozone NAAQS. 

The bases for our proposed 

determination and approvals follow. 

A. Louisville Has Attained the 8-Hour 

Ozone NAAQS 

For ozone, an area may be considered 

to be attaining the 8-hour ozone NAAQS 

if there are no violations of the NAAQS, 

as determined in accordance with 40 

CFR 50.10 and appendix I, based on the 

most recent three complete, consecutive 

calendar years of quality-assured air 

quality monitoring data at all ozone 

monitoring sites in the area and in its 

nearby downwind environs. To attain 

this standard, the average of the annual 

fourth-high daily maximum 8-hour 

average ozone concentrations measured 

and recorded at each monitor (the 

monitoring site’s ozone design value) 

within the area and in its nearby 

downwind environs over the three-year 

period must not exceed the ozone 

standard. Based on an ozone data 

rounding convention described in 40 

CFR part 50, appendix I, the 8-hour 

standard is attained if the area’s ozone 

design value 4 is 0.084 ppm (84 ppb) or 

lower. The data must be collected and 

quality-assured in accordance with 40 

CFR part 58, and must be recorded in 

EPA’s Air Quality System (AQS). The 

ozone monitors generally should have 

remained at the same locations for the 

duration of the monitoring period 

required to demonstrate attainment (for 

three years or more). The data 

supporting attainment of the standard 

must be complete in accordance with 40 

CFR part 50, appendix I. 

Indiana submitted ozone monitoring 

data for the April through September 

ozone seasons from 2003 to 2005 for the 

Indiana and Kentucky portions of the 

Louisville nonattainment area. This data 

has been quality assured by Indiana and 

Kentucky and is recorded in AQS. The 

4th high averages are summarized in 

Table 1, in which the values are in ppm 

ozone. 

TABLE 1.—4TH HIGH VALUES IN PPM OZONE. 

Monitor County 2003–

2005 2003 2004 2005 2006 

Charlestown, IN ...................................... Clark ....................................................... 0.081 0.090 0.074 0.080 0.079 


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TABLE 1.—4TH HIGH VALUES IN PPM OZONE.—Continued 

Monitor County 2003–

2005 2003 2004 2005 2006 

New Albany, IN ....................................... Floyd ....................................................... 0.079 0.086 0.071 0.079 0.076 

WLKY, KY ............................................... Jefferson ................................................. 0.071 0.073 0.068 0.074 0.067 

Watson, KY ............................................. Jefferson ................................................. 0.076 0.075 0.070 0.085 0.077 

Bates, KY ................................................ Jefferson ................................................. 0.073 0.072 0.070 0.079 0.074 

Shepherdsville, KY ................................. Bulitt ........................................................ 0.073 0.072 0.068 0.080 0.071 

Buckner, KY ............................................ Oldham ................................................... 0.082 0.082 0.076 0.089 0.083 

These data show that the average 

fourth-high daily maximum 8-hour 

ozone concentrations for the monitoring 

sites in the Louisville area are all below 

the 85 ppb ozone standard violation cutoff. The data support the conclusion 

that the Louisville 8-hour ozone 

nonattainment area (including Clark and 

Floyd Counties) did not experience a 

monitored violation of the 8-hour ozone 

standard from 2003–2005. In addition, 

the surrounding counties in Indiana and 

Kentucky did not monitor 

nonattainment during the 2003–2005 

period. As also noted in Table 1, the 

8-hour ozone NAAQS continued to be 

attained in the Louisville area through 

2006. 

Indiana has committed to continue 

ozone monitoring at the sites in Clark 

and Floyd Counties. IDEM also commits 

to consult with the EPA prior to making 

any changes in the existing monitoring 

network. In summary, EPA believes that 

the data submitted by Indiana provide 

an adequate demonstration that the 

Louisville area attains the 8-hour ozone 

NAAQS. 

B. Clark and Floyd Counties Have Met 

All Applicable Requirements Under 

Section 110 and Part D of the CAA and 

the Area Has a Fully Approved SIP 

Under Section 110(k) of the CAA 

EPA has determined that Indiana has 

met all currently applicable SIP 

requirements for Clark and Floyd 

Counties under section 110 of the CAA 

(general SIP requirements). EPA has 

determined that the Indiana SIP meets 

currently applicable SIP requirements 

under part D of title I of the CAA 

(requirements specific to subpart 1 and 

subpart 2 ozone nonattainment areas). 

See section 107(d)(3)(E)(v) of the CAA. 

In addition, EPA has determined that 

the Indiana SIP is fully approved with 

respect to all applicable requirements. 

See section 107(d)(3)(E)(ii) of the CAA. 

In making these determinations, EPA 

ascertained what requirements are 

applicable to the area, and determined 

that the applicable portions of the SIP 

meeting these requirements are fully 

approved under section 110(k) of the 

CAA. We note that SIPs must be fully 

approved only with respect to currently 

applicable requirements of the CAA, 

those CAA requirements applicable to 

Clark and Floyd Counties at the time the 

State submitted the final, complete 

ozone redesignation request for this 

area. 

1. Clark and Floyd Counties Have Met 

All Applicable Requirements Under 

Section 110 and Part D of the CAA 

The September 4, 1992 Calcagni 

memorandum describes EPA’s 

interpretation of section 107(D)(3)(E) of 

the CAA. Under this interpretation, to 

qualify for redesignation of an area to 

attainment, the State and the area must 

meet the relevant CAA requirements 

that come due prior to the State’s 

submittal of a complete redesignation 

request for the area. See also a 

September 17, 1993, memorandum from 

Michael Shapiro, Acting Assistant 

Administrator for Air and Radiation, 

‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) On or After 

November 15, 1992’’ and 66 FR 12459, 

12465–12466 (March 7, 1995) 

(redesignation of Detroit-Ann Arbor, 

Michigan to attainment of the 1-hour 

ozone NAAQS). Applicable 

requirements of the CAA that come due 

subsequent to the State’s submittal of a 

complete redesignation request remain 

applicable until a redesignation to 

attainment of the standard is approved, 

but are not required as a prerequisite to 

redesignation. See section 175A(c) of 

the CAA. Sierra Club v. EPA, 375 F.3d 

537 (7th Cir. 2004). See also 68 FR 

25424, 25427 (May 12, 2003) 

(redesignation of the St. Louis/East St. 

Louis area to attainment of the 1-hour 

ozone NAAQS). 

General SIP requirements: Section 

110(a) of title I of the CAA contains the 

general requirements for a SIP, which 

include: enforceable emission 

limitations and other control measures, 

means, or techniques; provisions for the 

establishment and operation of 

appropriate devices necessary to collect 

data on ambient air quality; and 

programs to enforce the emission 

limitations. SIP elements and 

requirements are specified in section 

110(a)(2) of title I, part A of the CAA. 

These requirements and SIP elements 

include, but are not limited to, the 

following: (a) Submittal of a SIP that has 

been adopted by the State after 

reasonable public notice and a hearing; 

(b) provisions for establishment and 

operation of appropriate procedures 

needed to monitor ambient air quality; 

(c) implementation of a source permit 

program; (d) provisions for the 

implementation of new source part C 

requirements (Prevention of Significant 

Deterioration (PSD)) and new source 

part D requirements (New Source 

Review (NSR)); (e) criteria for stationary 

source emission control measures, 

monitoring, and reporting; (f) provisions 

for air quality modeling; and (g) 

provisions for public and local agency 

participation. 

SIP requirements and elements are 

discussed in the following EPA 

documents: ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992; ‘‘State Implementation Plan (SIP) 

Actions Submitted in Response to Clean 

Air Act (CAA) Deadlines,’’

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, October 28, 1992; and ‘‘State 

Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) on or After 

November 15, 1992,’’ Memorandum 

from Michael H. Shapiro, Acting 

Assistant Administrator, September 17, 

1993. 

Section 110(a)(2)(D) of the CAA 

requires SIPs to contain certain 

measures to prevent sources in one State 

from significantly contributing to air 

quality problems in another State. To 

implement this provision, EPA required 

States to establish programs to address 

transport of air pollutants (NOX SIP call, 


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Clean Air Interstate Rule (CAIR)). EPA 

has also found, generally, that states 

have not submitted SIPs under section 

110(a)(1) of the CAA to meet the 

interstate transport requirements of 

section 110(a)(2)(D)(i) of the CAA (70 FR 

21147, April 25, 2005). However, the 

section 110(a)(2)(D) requirements for a 

State are not linked with a particular 

nonattainment area’s classification. EPA 

believes that the requirements linked 

with a particular nonattainment area’s 

classification are the relevant measures 

to evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a State regardless 

of the designation of any one particular 

area in the State. 

These requirements should not be 

construed to be applicable requirements 

for purposes of redesignation. In 

addition, the other section 110 elements 

described above that are not connected 

with nonattainment plan submissions 

and that are not linked with an area’s 

attainment status are also not applicable 

requirements for purposes of 

redesignation. A State remains subject 

to these requirements after an area is 

redesignated to attainment. We 

conclude that only the section 110 and 

part D requirements which are linked 

with an area’s designation and 

classification are the relevant measures 

in evaluating this aspect of a 

redesignation request. This approach is 

consistent with EPA’s existing policy on 

applicability of conformity and 

oxygenated fuels requirements for 

redesignation purposes, as well as with 

section 184 ozone transport 

requirements. See: Reading, 

Pennsylvania proposed and final 

rulemakings (61 FR 53174–53176, 

October 10, 1996 and 62 FR 24826, May 

7, 1997); Cleveland-Akron-Loraine, 

Ohio final rulemaking (61 FR 20458, 

May 7, 1996); and Tampa, Florida final 

rulemaking (60 FR 62748, December 7, 

1995). See also the discussion on this 

issue in the Cincinnati, Ohio ozone 

redesignation (65 FR 37890, June 19, 

2000), and the Pittsburgh, Pennsylvania 

ozone redesignation (66 FR 50399, 

October 19, 2001). In addition, Indiana’s 

response to the CAIR rule was due in 

September 2006. Because this deadline 

had not yet passed when the State 

submitted the final, complete 

redesignation request, the State’s CAIR 

submittal is also not an applicable 

requirement for redesignation purposes. 

It should be noted that section 110 

elements not linked to the area’s 

nonattainment status are not applicable 

for purposes of redesignation. 

Nonetheless, we also note that EPA has 

previously approved provisions in the 

Indiana SIP addressing section 110 

elements under the 1-hour ozone 

standard. We have analyzed the Indiana 

SIP as codified in 40 CFR part 52, 

subpart P, and have determined that it 

is consistent with the requirements of 

section 110(a)(2) of the CAA. The SIP, 

which has been adopted after reasonable 

public notice and hearing, contains 

enforceable emission limitations; 

requires monitoring, compiling, and 

analyzing ambient air quality data; 

requires preconstruction review of new 

major stationary sources and major 

modifications of existing sources; 

provides for adequate funding, staff, and 

associated resources necessary to 

implement its requirements; and 

requires stationary source emissions 

monitoring and reporting, and otherwise 

satisfies the applicable requirements of 

section 110(a)(2). 

Part D SIP requirements: EPA has 

determined that the Indiana SIP meets 

applicable SIP requirements under part 

D of the CAA. Under part D, an area’s 

classification (marginal, moderate, 

serious, severe, and extreme) indicates 

the requirements to which it will be 

subject. Subpart 1 of part D, found in 

sections 172–176 of the CAA, sets forth 

the basic nonattainment area plan 

requirements applicable to all 

nonattainment areas. Subpart 2 of part 

D, found in section 182 of the CAA, 

establishes additional specific 

requirements depending on the area’s 

nonattainment classification. 

Part D, subpart 1 requirements: For 

purposes of evaluating this 

redesignation request, the applicable 

subpart 1 part D requirements for all 

nonattainment areas are contained in 

sections 172(c)(1)–(9) and 176. A 

thorough discussion of the requirements 

of section 172 can be found in the 

General Preamble for Implementation of 

Title I (57 FR 13498). (see also 68 FR 

4852–4853 regarding a St. Louis ozone 

redesignation notice of proposed 

rulemaking for a discussion of section 

172 requirements.) 

No requirements under part D of the 

CAA came due for Clark and Floyd 

Counties prior to the State’s November 

15, 2006, submittal of a complete 

redesignation request. For example, the 

requirement for an ozone attainment 

demonstration, as contained in section 

172(c)(1), was not yet applicable, nor 

were the requirements for Reasonably 

Available Control Measures (RACM) 

and Reasonably Available Control 

Technology (RACT) (section 172(c)(1)), 

Reasonable Further Progress (RFP) 

(section 172(c)(2)), and attainment plan 

and RFP contingency measures (section 

172(c)(9)). All of these required SIP 

elements are required for submittal after 

November 15, 2006. Therefore, none of 

the part D requirements are applicable 

to Clark and Floyd Counties for 

purposes of redesignation. 

Section 176 conformity requirements: 

Section 176(c) of the CAA requires 

states to establish criteria and 

procedures to ensure that Federallysupported or funded activities, 

including highway projects, conform to 

the air planning goals in the applicable 

SIP. The requirement to determine 

conformity applies to transportation 

plans, programs, and projects 

developed, funded, or approved under 

Title 23 U.S.C. and the Federal Transit 

Act (transportation conformity) as well 

as to all other Federally-supported or 

funded projects (general conformity). 

State conformity SIP revisions must be 

consistent with Federal conformity 

regulations that the CAA required the 

EPA to promulgate. 

In addition to the fact that part D 

requirements did not become due prior 

to Indiana’s submission of the complete 

ozone redesignation request for Clark 

and Floyd Counties, and, therefore, are 

not applicable for redesignation 

purposes, EPA has similarly concluded 

that the conformity requirements do not 

apply for purposes of evaluating the 

ozone redesignation request under 

section 107(d) of the CAA. In addition, 

it is reasonable to interpret the 

conformity requirements as not 

applying for purposes of evaluating the 

ozone redesignation request under 

section 107(d) of the CAA because state 

conformity rules are still required after 

redesignation of an area to attainment of 

a NAAQS and Federal conformity rules 

apply where state rules have not been 

approved. See Wall v. EPA, 265 F.3d 

426 (6th Cir. 2001). See also 60 FR 

62748 (December 7, 1995) (Tampa, 

Florida). 

We conclude that the State and Clark 

and Floyd Counties have satisfied all 

applicable requirements under section 

110 and part D of the CAA to the extent 

that the requirements apply for the 

purposes of reviewing the State’s ozone 

redesignation request. 

2. Clark and Floyd Counties Have a 

Fully Approved Applicable SIP Under 

Section 110(k) of the CAA 

EPA has fully approved the Indiana 

SIP for Clark and Floyd Counties under 

section 110(k) of the CAA for all 

applicable requirements. EPA may rely 

on prior SIP approvals in approving a 

redesignation request (see the 

September 4, 1992 John Calcagni 

memorandum, page 3, Southwestern 

Pennsylvania Growth Alliance v. 

Browner, 144 F.3d 984, 989–990 (6th 

Cir. 1998), Wall v. EPA, 265 F.3d 426 


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(6th Cir. 2001)), plus any additional 

measures it may approve in conjunction 

with a redesignation action. See 68 FR 

25426 (May 12, 2003). Since the passage 

of the CAA of 1970, Indiana has adopted 

and submitted, and EPA has fully 

approved, provisions addressing the 

various required SIP elements 

applicable to Clark and Floyd Counties 

for purposes of redesignation. No Clark 

and Floyd County SIP provisions are 

currently disapproved, conditionally 

approved, or partially approved. As 

indicated above, EPA believes that the 

section 110 elements not connected 

with nonattainment plan submissions 

and not linked to the area’s 

nonattainment status are not applicable 

requirements for purposes of review of 

the State’s redesignation request. EPA 

has concluded that the section 110 SIP 

submission approved under the 1-hour 

standard will be adequate for purposes 

of attaining and maintaining the 8-hour 

standard. EPA also believes that since 

the part D requirements did not become 

due prior to Indiana’s submission of a 

final, complete redesignation request, 

they also are not applicable 

requirements for purposes of 

redesignation. 

C. The Air Quality Improvement in 

Clark and Floyd Counties Is Due to 

Permanent and Enforceable Reductions 

in Emissions From Implementation of 

the SIP and Applicable Federal Air 

Pollution Control Regulations and Other 

Permanent and Enforceable Emission 

Reductions 

EPA believes that the State of Indiana 

has demonstrated that implementation 

of the SIP, Federal measures, and other 

State-adopted measures have 

contributed to the observed air quality 

improvement in Clark and Floyd 

Counties. 

In making this demonstration, the 

State has documented the changes in 

VOC and NOX emissions from 

anthropogenic (man-made or manbased) sources in Clark and Floyd, as 

well as the entire Louisville 

nonattainment area, between 1996 and 

2004 and the statewide NOX emissions 

from Electric Generating Units (EGUs) 

from 1999 to 2005. The Louisville area 

was monitored in violation of the 8-hour 

ozone NAAQS during the period of 

2001–2003 and in attainment with the 

NAAQS during the period of 2003–

2005. The total VOC and NOX emissions 

for both Clark and Floyd Counties and 

the entire Louisville nonattainment area 

(Louisville NA in the table) for 2002, an 

attainment year, and 2003, a 

nonattainment year, are given in Table 

2. 

TABLE 2.—VOC AND NOX EMISSIONS IN CLARK & FLOYD COUNTIES AND LOUISVILLE, ALL SOURCES—EMISSIONS IN

TONS/SUMMER DAY

Pollutant 2002 2003 

VOC—Clark & Floyd ........................................................................................................................................................ 32.69 29.26 

NOX—Clark & Floyd ........................................................................................................................................................ 57.59 51.76 

VOC—Louisville NA ......................................................................................................................................................... 138.24 133.83 

NOX—Louisville NA ......................................................................................................................................................... 247.46 238.76 

The statewide NOX emissions for 

EGUs from 1999–2005 are given in 

Table 3 below. 

TABLE 3.—NOX EMISSIONS FROM ELECTRIC GENERATING UNITS IN INDIANA STATEWIDE—EMISSIONS IN THOUSANDS OF

TONS PER OZONE SEASON

[April–October] 

Area 1999 2000 2001 2002 2003 2004 2005 

Statewide ......................................................................................................... 149.8 133.9 136.1 114.0 99.3 66.6 55.5 

The NOX and VOC emissions for 

Clark and Floyd Counties and the entire 

Louisville nonattainment area have 

decreased from 2002, an 

8-hour standard violation year, to 2003, 

an 8-hour standard attainment year. In 

addition, the Indiana Statewide EGU 

NOX emissions have continued to 

decline from 1999 to 2005. This is a 

result of the implementation of the 

Indiana NOX SIP (in response to EPA’s 

NOX SIP call) and acid rain control 

regulations, both of which led to 

permanent, enforceable emission 

reductions. 

VOC and NOX emissions have 

declined as a result of enforceable 

emission reductions. As required by 

Section 172 of the CAA, Indiana in the 

mid-1990s promulgated rules requiring 

RACT for emissions of VOCs. Statewide 

RACT rules have applied to all new 

sources locating in Indiana since that 

time and include the following VOC 

rules: 326 Indiana Administrative Code 

(IAC) 8–1–6 (Best Available Control 

Technology (BACT) for non-specific 

sources); 326 IAC 8–2 (surface coating 

emission limitations); 326 IAC 8–3 

(organic solvent degreasing operations); 

326 IAC 8–4 (petroleum sources); and 

326 IAC 8–5 (miscellaneous sources). 

The VOC emission reductions resulting 

from the implementation of these VOC 

emission control rules are permanent 

and enforceable. 

Besides the statewide VOC RACT 

rules and NOX emission control 

requirements, other Federal emission 

reduction requirements have resulted in 

decreased ozone precursor emissions in 

Clark and Floyd Counties (a similar set 

of control measures have been 

implemented for the Kentucky portion 

of the Louisville area) and will produce 

future emission reductions that will 

support maintenance of the ozone 

standard in these Counties. These 

emission reduction requirements 

include the following: 

Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards. 

These emission control requirements 

result in lower emissions from new cars 

and light duty trucks, including sport 

utility vehicles. The Federal rules are 

being phased in between 2004 and 2009. 

The EPA has estimated that, by the end 

of the phase-in period, the following 

vehicle NOX emission reductions will 


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5The attainment year can be any of the three 

consecutive years in which the area has clean 

(below violation level) air quality data (2003, 2004, 

or 2005 for the Louisville area). 

occur: Passenger cars (light duty 

vehicles) (77 percent); light duty trucks, 

minivans, and sports utility vehicles (86 

percent; and larger sports utility 

vehicles, vans, and heavier trucks (69 to 

95 percent). VOC emission reductions 

are also expected to range from 12 to 18 

percent, depending on vehicle class, 

over the same period. Although some of 

these emission reductions have already 

occurred by the 2004 attainment year, 

most of these emission reductions will 

occur during the maintenance period for 

Clark and Floyd Counties. 

Heavy-Duty Diesel Engines. In July 

2000, EPA issued a final rule to control 

the emissions from highway heavy duty 

diesel engines, including low-sulfur 

diesel fuel standards. These emission 

reductions are being phased in between 

2004 and 2007. This rule is expected to 

result in a 40 percent decrease in NOX

emissions from heavy duty diesel 

vehicle. 

Non-Road Diesel Rule. Issued in May, 

2004, this rule generally applies to new 

stationary diesel engines used in certain 

industries, including construction, 

agriculture, and mining. In addition to 

affecting engine design, this rule 

includes requirements for cleaner fuels. 

It is expected to reduce NOX emissions 

from these engines by up to 90 percent, 

and to significantly reduce particulate 

matter and sulfur emissions from these 

engines in addition to the NOX emission 

reduction. This rule did not affect 2004 

emissions from these sources, but will 

limit emissions from new engines 

beginning in 2008. 

Indiana commits to maintain all 

existing emission control measures that 

affect Clark and Floyd Counties after 

this area is redesignated to attainment of 

the 8-hour ozone NAAQS. All changes 

in existing rules affecting Clark and 

Floyd Counties and new rules 

subsequently needed to provide for the 

maintenance of the 8-hour ozone 

NAAQS in Clark and Floyd Counties 

will be submitted to the EPA for 

approval as SIP revisions. 

D. Clark and Floyd Counties Have a 

Fully Approvable Ozone Maintenance 

Plan Pursuant to Section 175A of the 

CAA 

In conjunction with its request to 

redesignate Clark and Floyd Counties to 

attainment of the ozone NAAQS, 

Indiana submitted a SIP revision request 

to provide for maintenance of the 8-hour 

ozone NAAQS in Clark and Floyd 

Counties for at least 10 years after the 

redesignation of this area to attainment 

of the 8-hour ozone NAAQS. 

1. What Is Required in an Ozone 

Maintenance Plan? 

Section 175A of the CAA sets forth 

the required elements of air quality 

maintenance plans for areas seeking 

redesignation from nonattainment to 

attainment of a NAAQS. Under section 

175A, a maintenance plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least 10 

years after the Administrator approves 

the redesignation to attainment. Eight 

years after the redesignation, the State 

must submit a revised maintenance plan 

which demonstrates maintenance of the 

standard for 10 years following the 

initial 10 year maintenance period. To 

address the possibility of future NAAQS 

violations, the maintenance plan must 

contain such contingency measures, 

with a schedule for implementation, as 

EPA deems necessary, to assure prompt 

correction of any future NAAQS 

violations. The September 4, 1992, John 

Calcagni memorandum provides 

additional guidance on the content of 

maintenance plans. An ozone 

maintenance plan should, at minimum, 

address the following items: (1) The 

attainment of VOC and NOX emissions 

inventories; (2) a maintenance 

demonstration showing maintenance for 

the 10 years of the maintenance period; 

(3) a commitment to maintain the 

existing monitoring network; (4) factors 

and procedures to be used for 

verification of continued attainment; 

and (5) a contingency plan to prevent 

and/or correct a future violation of the 

NAAQS. 

2. Demonstration of Maintenance 

IDEM prepared comprehensive VOC 

and NOX emission inventories for Clark 

and Floyd Counties, including point 

(significant stationary sources), area 

(smaller and widely-distributed 

stationary sources), mobile on-road, and 

mobile non-road sources for 2003 (the 

base year/attainment year). 

As part of the November 15, 2006, 

redesignation request submittal, IDEM 

included a requested revision to the SIP 

to incorporate a 14-year ozone 

maintenance plan which is consistent 

with the requirements under section 

175A of the CAA. Included in the 

maintenance plan is a maintenance 

demonstration. This demonstration 

shows maintenance of the 8-hour ozone 

NAAQS by documenting current and 

projected VOC and NOX emissions for 

both Clark and Floyd Counties and the 

entire Louisville nonattainment area 

and by documenting photochemical 

modeling results that support 

maintenance of the standard in this 

area.5

Table 4 specifies the VOC emissions 

in Clark and Floyd Counties and the 

entire nonattainment area for 2003, 2011 

and 2020. IDEM chose 2020 as a 

projection year to meet the 10-year 

minimum maintenance projection 

requirement, allowing several years for 

the State to complete its adoption of the 

ozone redesignation request and ozone 

maintenance plan and for the EPA to 

approve the redesignation request and 

maintenance plan. IDEM also chose 

2011 as an interim year to demonstrate 

that VOC and NOX emissions will 

remain below the attainment levels 

throughout the 14-year maintenance 

period. The mobile source emission 

projections for 2011 and 2020 exclude 

VOC reductions associated with 

Indiana’s Clark and Floyd vehicle 

inspection and maintenance program 

that was discontinued at the end of 

2006. Indiana’s termination of its 

inspection and maintenance program in 

Clark and Floyd Counties will be the 

subject of a subsequent Federal Register 

notice. 

Table 5, similar to Table 4, specifies 

the NOX emissions in Clark and Floyd 

Counties and the entire nonattainment 

area for 2003, 2011 and 2020. Together, 

the information contained in Tables 4 

and 5 and the photochemical modeling 

results demonstrate that Clark and 

Floyd Counties, and the Louisville 

nonattainment area, should remain in 

attainment of the 8-hour ozone NAAQS 

between 2003 and 2020, which is more 

than 10 years after EPA is expected to 

approve the redesignation of these 

counties to attainment of the 8-hour 

ozone NAAQS. The mobile source 

emission projections for 2011 and 2020 

exclude NOX reductions associated with 

Indiana’s Clark and Floyd vehicle 

inspection and maintenance program 

that was discontinued at the end of 

2006. 


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TABLE 4.—ATTAINMENT YEAR (2003) AND PROJECTED VOC EMISSIONS IN CLARK AND FLOYD COUNTIES AND ENTIRE

NONATTAINMENT AREA

[Tons per summer day] 

Source sector 

Year 

2003 2011 2020 

Point: 

Clark and Floyd ............................................................................................................................................ 4.17 6.61 7.14 

Louisville NA ................................................................................................................................................. 36.62 39.28 39.85 

Area: 

Clark and Floyd ............................................................................................................................................ 11.94 12.77 14.59 

Louisville NA ................................................................................................................................................. 35.07 36.93 40.02 

On-Road Mobile: 

Clark and Floyd ............................................................................................................................................ 9.60 6.12 3.98 

Louisville NA ................................................................................................................................................. 40.97 25.69 16.89 

Off-Road Mobile: 

Clark and Floyd ............................................................................................................................................ 3.55 2.35 2.20 

Louisville NA ................................................................................................................................................. 21.17 15.87 15.28 

Total: 

Clark and Floyd ............................................................................................................................................ 29.26 27.85 27.91 

Louisville NA ................................................................................................................................................. 133.83 117.77 112.04 

TABLE 5.—ATTAINMENT YEAR AND PROJECTED NOX EMISSIONS IN CLARK AND FLOYD COUNTIES AND ENTIRE

NONATTAINMENT AREA

[Tons per summer day] 

Source sector 

Year 

2003 2011 2020 

Point: 

Clark and Floyd ............................................................................................................................................ 24.26 27.29 28.66 

Louisville NA ................................................................................................................................................. 99.73 78.95 75.97 

Area: 

Clark and Floyd ............................................................................................................................................ 1.60 1.71 1.80 

Louisville NA ................................................................................................................................................. 2.53 2.67 2.79 

On-Road Mobile: 

Clark and Floyd ............................................................................................................................................ 20.27 10.20 4.15 

Louisville NA ................................................................................................................................................. 95.51 47.53 19.62 

Off-Road Mobile: 

Clark and Floyd ............................................................................................................................................ 5.63 4.43 3.49 

Louisville NA ................................................................................................................................................. 41.01 34.77 27.88 

Total: 

Clark and Floyd ............................................................................................................................................ 51.77 43.63 38.10 

Louisville NA ................................................................................................................................................. 238.79 163.92 126.26 

IDEM also notes that the State’s EGU 

NOX emission control rules stemming 

from EPA’s NOX SIP call, implemented 

beginning in 2004, and CAIR, which is 

to be implemented beginning in 2009 

will further lower NOX emissions in 

upwind areas. This should result in 

decreased ozone and ozone precursor 

transport into Clark and Floyd Counties. 

It will also support maintenance of the 

ozone standard in Clark and Floyd 

Counties. 

Based upon the data in Table 4, VOC 

emissions in Clark and Floyd Counties 

are projected to decline by about 5% 

between 2003 and 2020 and VOC 

emissions in the entire nonattainment 

area are projected to decline by 16%. 

Based upon the data in Table 5, NOX

emissions in Clark and Floyd Counties 

are projected to decline by over 26% 

between 2003 and 2020, and NOX

emissions in the entire nonattainment 

area are projected to decline by 47%. 

Based on the projected VOC and NOX

emission reductions between the 

attainment year in 2003 and the 

maintenance year of 2020, for both Clark 

and Floyd Counties and the entire 

Louisville nonattainment area, we 

conclude that IDEM has successfully 

demonstrated that the 8-hour ozone 

standard should be maintained in Clark 

and Floyd Counties, as well as the entire 

Louisville nonattainment area through 

2020. This is reinforced by 

photochemical modeling done for Clark 

and Floyd Counties. We believe that this 

is especially likely given the expected 

impacts of the NOX SIP call and CAIR. 

This conclusion is further supported by 

the fact that other states in the eastern 

portion of the United States are 

expected to further reduce regional NOX

emissions through implementation of 

their own NOX emission control rules 

for EGUs and other NOX sources and 

through implementation of CAIR, 

reducing ozone and NOX transport into 

Clark and Floyd Counties and the entire 

Louisville nonattainment area. 

3. Monitoring Network 

IDEM commits to continue operating 

and maintaining an approved ozone 

monitoring network in Clark and Floyd 

Counties in accordance with 40 CFR 

part 58 through the 14-year maintenance 

period. This will allow the confirmation 

of the maintenance of the 8-hour ozone 

standard in this area and the triggering 

of contingency measures if needed. 

4. Verification of Continued Attainment 

Continued attainment of the 8-hour 

ozone NAAQS in Clark and Floyd 


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Counties depends on the State’s efforts 

toward tracking applicable indicators 

during the maintenance period. The 

State’s plan for verifying continued 

attainment of the 8-hour ozone standard 

in Clark and Floyd Counties consists, in 

part, of a plan to continue ambient 

ozone monitoring in accordance with 

the requirements of 40 CFR part 58. In 

addition, IDEM will periodically revise 

and review the VOC and NOX emissions 

inventories for these counties to assure 

that emissions growth is not threatening 

the continued attainment of the 8-hour 

ozone standard in this area. Revised 

emission inventories for this area will 

be prepared for 2005, 2008, and 2011 as 

necessary to comply with the emission 

inventory reporting requirements 

established in the CAA. The revised 

emissions will be compared with the 

2003 attainment emissions and the 2020 

projected maintenance year emissions to 

assure continued maintenance of the 

ozone standard. 

5. Contingency Plan 

The contingency plan provisions of 

the CAA are designed to result in 

prompt correction or prevention of 

violations of the NAAQS that might 

occur after redesignation of an area to 

attainment of the NAAQS. Section 175A 

of the CAA requires that a maintenance 

plan include such contingency 

measures as EPA deems necessary to 

assure that the State will promptly 

correct a violation of the NAAQS that 

might occur after redesignation. The 

maintenance plan must identify the 

contingency measures to be considered 

for possible adoption, a schedule and 

procedure for adoption and 

implementation of the selected 

contingency measures, and a time limit 

for action by the State. The State should 

also identify specific indicators to be 

used to determine when the 

contingency measures need to be 

adopted and implemented. The 

maintenance plan must include a 

requirement that the State will 

implement all measures with respect to 

control of the pollutant(s) that were 

controlled in the SIP before the 

redesignation of the area to attainment. 

See section 175A(d) of the CAA. 

As required by section 175A of the 

CAA, Indiana commits to review its 

maintenance plan eight years after 

redesignation and to adopt and 

expeditiously implement any necessary 

corrective actions (or contingency 

measures). Contingency measures to be 

considered will be selected from a 

comprehensive list of measures deemed 

appropriate and effective at the time the 

selection is made. The contingency plan 

has two levels of actions/responses 

depending on whether a violation of the 

8-hour ozone standard is only 

threatened (Warning Level Response) or 

has actually occurred (Action Level 

Response). 

A Warning Level Response will be 

prompted whenever an annual (1-year) 

fourth-high monitored daily peak 8-hour 

ozone concentration of 89 ppb (or 

greater) occurs at any monitor in Clark 

and Floyd Counties, or a 2-year 

averaged annual fourth-high daily peak 

8-hour ozone concentration of 85 ppb or 

greater occurs at any monitor in Clark or 

Floyd Counties. A Warning Level 

Response will consist of a study to 

determine whether the monitored ozone 

level indicates a trend toward higher 

ozone levels or whether emissions are 

increasing, threatening a future 

violation of the ozone NAAQS. The 

study will evaluate whether the trend, if 

any, is likely to continue, and, if so, the 

emission control measures necessary to 

reverse the trend, taking into 

consideration the ease and timing of 

implementation, as well as economic 

and social considerations. 

Implementation of necessary controls 

will take place as expeditiously as 

possible, but in no event later than 12 

months from the conclusion of the most 

recent ozone season. If new emission 

controls are needed to reverse the 

adverse ozone trend, the procedures for 

emission control selection under the 

Action Level Response will be followed. 

An Action Level Response will be 

triggered when a violation of the 8-hour 

ozone standard is monitored at any of 

the monitors in the maintenance area 

(when a 3-year average annual fourthhigh monitored daily peak 8-hour ozone 

concentration of 85 ppb or higher is 

recorded at any such monitor). In this 

situation, IDEM will determine the 

additional emission control measures 

needed to assure future attainment of 

the 8-hour ozone NAAQS. IDEM will 

focus on emission control measures that 

can be implemented within 18 months 

from the close of the ozone season in 

which the ozone standard violation is 

monitored. 

Adoption of any additional emission 

control measures prompted by either of 

the two response levels will be subject 

to the necessary administrative and 

legal processes dictated by State law. 

This process will include publication of 

public notices, providing the 

opportunity for a public hearing, and 

other measures required by Indiana law 

for rulemaking by State environmental 

boards. If a new emission control 

measure is already promulgated and 

scheduled for implementation at the 

Federal or State level, and that emission 

control measure is determined to be 

sufficient to address the air quality 

problem or adverse trend, additional 

local emission control measures may be 

determined to be unnecessary. IDEM 

will submit to the EPA an analysis to 

demonstrate that the proposed emission 

control measures are adequate to return 

the area to attainment. 

Contingency measures contained in 

the maintenance plan are those 

emission controls or other measures that 

the State may choose to adopt and 

implement to correct existing or 

possible air quality problems in Clark 

and Floyd Counties. These include, but 

are not limited to, the following: 

i. Lower Reid vapor pressure gasoline 

requirements; 

ii. Broader geographic applicability of 

existing emission control measures; 

iii. Tightened RACT requirements on 

existing sources covered by EPA Control 

Technique Guidelines (CTGs) issued in 

response to the 1990 CAA amendments; 

iv. Application of RACT to smaller 

existing sources; 

v. Vehicle Inspection and 

Maintenance; 

vi. One or more Transportation 

Control Measures sufficient to achieve 

at least a 0.5 percent reduction in actual 

area-wide VOC emissions, to be selected 

from the following: 

A. Trip reduction programs, 

including, but not limited to, employerbased transportation management plans, 

area-wide rideshare programs, work 

schedule programs, and telecommuting; 

B. Transit improvement; 

C. Traffic flow improvements; and, 

D. Other new or innovative 

transportation measures not yet in 

widespread use that affect State and 

local governments as deemed 

appropriate; 

vii. Alternative fuel and diesel retrofit 

programs for fleet vehicle operations; 

viii. Controls on consumer products 

consistent with those adopted elsewhere 

in the United States; 

ix. VOC or NOX emission offsets for 

new or modified major sources; 

x. VOC or NOX emission offsets for 

new or modified minor sources; 

xi. Increased ratio of emission offsets 

required for new sources; and, 

xii. VOC or NOX emission controls on 

new minor sources (with VOC or NOX

emissions less than 100 tons per year). 

6. Provisions for a Future Update of the 

Ozone Maintenance Plan 

As required by section 175A(b) of the 

CAA, the State commits to submit to the 

EPA an update of the ozone 

maintenance plan eight years after 

redesignation of the County to 

attainment of the 8-hour ozone NAAQS. 

The revision will contain Indiana’s plan 


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for maintaining the 8-hour ozone 

standard for 10 years beyond the first 

10-year period after redesignation. 

V. Has Indiana Adopted Acceptable 

Motor Vehicle Emissions Budgets for 

the End of the 14-Year Maintenance 

Plan Which Can Be Used to Support 

Conformity Determinations? 

A. How Are the Motor Vehicle Emission 

Budgets Developed and What Are the 

Motor Vehicle Emission Budgets for 

Clark and Floyd Counties? 

Under the CAA, States are required to 

submit, at various times, SIP revisions 

and ozone maintenance plans for 

applicable areas (for ozone 

nonattainment areas and for areas 

seeking redesignations to attainment of 

the ozone standard or revising existing 

ozone maintenance plans). These 

emission control SIP revisions (e.g., 

reasonable further progress and 

attainment demonstration SIP 

revisions), including ozone maintenance 

plans, must create MVEBs based on onroad mobile source emissions allocated 

to highway and transit vehicle use that, 

together with emissions from other 

sources in the area, will provide for 

attainment or maintenance of the ozone 

NAAQS. 

Under 40 CFR part 93, MVEBs for an 

area seeking a redesignation to 

attainment of the NAAQS are 

established for the last year of the 

maintenance plan and the State has the 

option of setting budgets for other years 

in the maintenance plan. The MVEBs 

serve as ceilings on emissions from an 

area’s planned transportation system. 

The MVEB concept is further explained 

in the preamble to the November 24, 

1993 transportation conformity rule (58 

FR 62188). The preamble also describes 

how to establish the MVEBs in the SIP 

and how to revise the MVEBs if needed. 

Under section 176(c) of the CAA, new 

transportation projects, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the part of the SIP that addresses 

emissions from cars and trucks. 

Conformity to the SIP means that 

transportation activities will not cause 

new air quality standard violations, or 

delay timely attainment of the NAAQS. 

If a transportation plan does not 

conform, most new transportation 

projects that would expand the capacity 

of roadways cannot go forward. 

Regulations at 40 CFR part 93 set forth 

EPA’s policy, criteria, and procedures 

for demonstrating and assuring 

conformity of transportation activities to 

a SIP. 

When reviewing SIP revisions 

containing MVEBs, including 

attainment strategies, rate-of-progress 

plans, and maintenance plans, EPA 

must affirmatively find that the MVEBs 

are ‘‘adequate’’ for use in determining 

transportation conformity. Once EPA 

affirmatively finds the submitted 

MVEBs to be adequate for transportation 

conformity purposes, the MVEBs are 

used by state and Federal agencies in 

determining whether proposed 

transportation projects conform to the 

SIPs as required by section 176(c) of the 

CAA. EPA’s substantive criteria for 

determining the adequacy of MVEBs are 

specified in 40 CFR 93.118(e)(4). 

EPA’s process for determining the 

adequacy of MVEBs consists of three 

basic steps: (1) Providing public 

notification of a SIP submission; (2) 

providing the public the opportunity to 

comment on the MVEBs during a public 

comment period; and (3) making a 

finding of adequacy. The process of 

determining the adequacy of submitted 

SIP MVEBs was initially outlined in 

EPA’s May 14, 1999, guidance, 

‘‘Conformity Guidance on 

Implementation of March 2, 1999, 

Conformity Court Decision.’’ This 

guidance was finalized in the 

Transportation Conformity Rule 

Amendments for the ‘‘New 8-Hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards and Miscellaneous 

Revisions for Existing Areas: 

Transportation Conformity Rule 

Amendments—Response to Court 

Decision and Additional Rule Change’’

published on July 1, 2004 (69 FR 

40004). EPA follows this guidance and 

rulemaking in making its adequacy 

determinations. 

The Transportation Conformity Rule, 

in 40 CFR section 93.118(f), provides for 

MVEB adequacy findings through two 

mechanisms. First, 40 CFR 93.118(f)(1) 

provides for posting a notice to the EPA 

conformity Web site at: http:// 

www.epa.gov/otaq/stateresources/ 

transconf/adequacy.htm and providing 

a 30-day public comment period. 

Second, a mechanism is described in 40 

CFR 93.118(f)(2) which provides that 

EPA can review the adequacy of an 

implementation plan MVEB 

simultaneously with its review of the 

implementation plan itself. 

EPA, through this rulemaking, is 

proposing to approve the MVEBs for use 

to determine transportation conformity 

in the Louisville 8-hour ozone area 

because EPA has determined that the 

budgets are consistent with the control 

measures in the SIP and that Louisville 

can maintain attainment of the 8-hour 

ozone NAAQS for the relevant required 

14-year period with mobile source 

emissions at the levels of the MVEBs. 

The MVEBs in the maintenance plan 

are for the entire Louisville area, which 

includes the Kentucky areas (Bullitt, 

Jefferson and Oldham Counties), in 

addition to Clark and Floyd Counties in 

Indiana. Through the transportation 

consultation process, it was decided 

that the best way to maintain the mobile 

source emissions for the area would be 

to set budgets for the entire area rather 

than each individual State. There is one 

Metropolitan Planning Organization for 

the entire area (the Kentuckiana 

Regional Planning and Development 

Agency). The transportation network 

modeling and transportation conformity 

determinations are conducted for the 

entire Louisville area. The 

transportation conformity regulations 

allow States to decide in consultation 

with the transportation partners, to 

determine budgets for the entire area or 

for each state. The transportation 

conformity budgets are listed in the 

Table below. MVEBs are proposed for 

both the 2020 year or last year of the 

maintenance plan and also for the 2003 

year which is an attainment year. 

LOUISVILLE KY-IN 8-HOUR OZONE REGIONAL MOTOR VEHICLE EMISSIONS

BUDGETS

(Tons per day) 

2003 2020 

VOC .................................. 40.97 22.92 

NOX .................................. 95.51 29.46 

Kentucky and Indiana have jointly 

chosen to allocate a portion of the 

available safety margin to the 2020 

MVEBs. This allocation is 6.03 tpd for 

VOC and 9.84 tpd for NOX. The 2020 

regional MVEBs are derived as follows 

for VOC: [16.89 tpd for total mobile 

emissions] + [6.03 tpd from available 

safety margin] = 22.92 tpd; and for NOX: 

[19.62 tpd for total mobile emissions] + 

[9.84 tpd from available safety margin] 

= 29.46 tpd. Thus, the remaining safety 

margin for the interstate Louisville area 

is 15.76 tpd for VOC and 102.69 tpd for 

NOX. 

These budgets are the same as the 

budgets that have been submitted by the 

State of Kentucky for the entire 

Louisville area and have been discussed 

by the transportation partners for the 

Louisville area. 

Through this rulemaking, EPA is 

proposing to approve the 2003 and 2020 

MVEBs for the interstate Louisville 8- 

hour ozone area for use to determine 

transportation conformity because EPA 

has determined that the interstate 

Louisville area maintains the standard 

with emissions at the levels of the 

budgets. If EPA approves the 2003 and 


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26068 Federal Register / Vol. 72, No. 88 / Tuesday, May 8, 2007 / Proposed Rules 

2020 MVEBs in the final rulemaking 

action, the new MVEBs must be used for 

future transportation conformity 

determinations. The new regional 2003 

and 2020 MVEBs, if found adequate or 

if approved in the final rulemaking, will 

be effective with the publication of 

EPA’s adequacy finding or final 

rulemaking in the Federal Register, 

whichever is done first. For required 

regional emissions analysis years that 

involve the year 2020 or beyond, the 

applicable budgets for the purposes of 

conducting transportation conformity 

will be the 2020 MVEBs for the 

interstate Louisville area. For required 

analysis years prior to 2020, the 

applicable budgets will be the 2003 

MVEBs. 

B. Are the MVEBs Approvable? 

The VOC and NOX MVEBs for 

Louisville are approvable because they 

provide for continued maintenance of 

the 8-hour ozone standard through 2020 

and provide a 6.03 tons-per-day safety 

margin for VOC and 9.84 tons-per-day 

safety margin for NOX. 

EPA is proposing to approve the 2003 

and 2020 MVEBs for the interstate 

Louisville area because the maintenance 

plans demonstrate that expected 

emissions for the area, including the 

MVEBs plus the estimated emissions for 

all other source categories, will continue 

to maintain the 8-hour ozone standard. 

VII. What is the Effect of EPA’s 

Proposed Action? 

Approval of the redesignation request 

would change the official designation of 

Clark and Floyd Counties from 

nonattainment to attainment of the 

8-hour ozone NAAQS. It would also 

incorporate into the Indiana SIP a plan 

for maintaining the ozone NAAQS 

through 2020. The maintenance plan 

includes contingency measures to 

remedy possible future violations of the 

8-hour ozone NAAQS, and establishes 

MVEBs (for the entire Louisville area) 

for the years 2003 and 2020. 

VII. Statutory and Executive Order 

Reviews 

Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, September 30, 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 proposed 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 proposed action merely proposes 

to approve state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this 

proposed 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 proposes to approve 

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 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 

proposes to approve a state rule 

implementing a federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. 

Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

This proposed 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 13045: Protection of 

Children from Environmental Health 

and Safety Risks 

This proposed 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 proposes 

approval of a state rule implementing a 

Federal Standard. 

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 regulatory 

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 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), 15 U.S.C. 272, 

requires Federal agencies to use 

technical standards that are developed 

or adopted by voluntary consensus to 

carry out policy objectives, so long as 

such standards are not inconsistent with 

applicable law or otherwise impractical. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. Absent a prior 

existing requirement for the state to use 

voluntary consensus standards, EPA has 

no authority to disapprove a SIP 

submission for failure to use such 

standards, and it would thus be 

inconsistent with applicable law for 

EPA to use voluntary consensus 

standards in place of a program 

submission that otherwise satisfies the 

provisions of the Clean Air Act. 

Therefore, the requirements of section 

12(d) of the NTTAA do not apply. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

40 CFR Part 81 

Air pollution control, Environmental 

protection, National parks, Wilderness 

areas. 

Dated: April 30, 2007. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. E7–8772 Filed 5–7–07; 8:45 am] 

BILLING CODE 6560–50–P 


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