Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12137

Authority: Sec. 203(a)(1), Pub. L. 96–481,

94 Stat. 2325 (5 U.S.C. 504(c)(1)); Pub. L. 99–

80, 99 Stat. 183

2. Section 2204.107 is amended by

revising the first sentence of paragraph

(b) to read:

§ 2204.107 Allowable fees and expenses.

* * * * *

(b) An award for the fee of an attorney

or agent under these rules shall not

exceed $125 per hour, unless the

Commission determines by regulation

that an increase in the cost of living or

a special factor, such as the limited

availability of qualified attorneys or

agents for Commission proceedings,

justifies a higher fee. * * *

* * * * *

3. Section 2204.301 is revised to read

as follows:

§ 2204.301 Filing and service of

documents.

An EAJA application is deemed to be

filed only when received by the

Commission. In all other respects, an

application for an award and any other

pleading or document related to an

application shall be filed and served on

all parties to the proceeding in

accordance with §§ 2200.7 and 2200.8,

except as provided in § 2204.202(b) for

confidential financial information.

Dated: March 6, 1997.

Stuart E. Weisberg,

Chairman.

Dated: March 6, 1997.

Velma Montoya,

Commissioner.

Dated: March 6, 1997.

Daniel Guttman,

Commissioner.

[FR Doc. 97–6362 Filed 3–13–97; 8:45 am]

BILLING CODE 7600–01–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[IN77–1; FRL–5709–2]

Approval and Promulgation of Air

Quality Implementation Plans, and

Designation of Areas for Air Quality

Planning Purposes; Indiana

AGENCY: United States Environmental

Protection Agency (USEPA).

ACTION: Proposed rule.

SUMMARY: The USEPA is proposing to

approve the ozone maintenance plan

submitted as a State Implementation

Plan (SIP) revision request and the

redesignation request submitted by the

State of Indiana for the purpose of

redesignating Vanderburgh County

(Evansville) from marginal

nonattainment to attainment for ozone.

Ground-level ozone, commonly known

as smog, is an air pollutant which forms

on hot summer days and which

harmfully affects lung tissue and

breathing passages. The redesignation to

attainment of the health-based ozone air

quality standard is based on a request

from the State of Indiana to redesignate

this area and approve its maintenance

plan, and on the supporting data the

State has submitted in support of the

requests. Under the Clean Air Act, a

designation can be changed if sufficient

data are available to warrant such a

change, and a maintenance plan is put

in place which is designed to ensure the

area maintains the ozone air quality

standard for the next ten years.

DATES: Comments must be received by

May 13, 1997.

ADDRESSES: Copies of the revision

request and USEPA’s analysis

(Technical Support Documents) are

available for inspection at the following

address:

U.S. Environmental Protection Agency,

Region 5, Air and Radiation Division,

77 West Jackson Boulevard, Chicago,

Illinois 60604. (It is recommended

that you telephone Edward Doty at

(312) 886–6057 before visiting the

Region 5 Office.)

Written comments should be sent to:

J. Elmer Bortzer, Chief, Regulation

Development Section, Air Programs

Branch (AR–18J), U.S. Environmental

Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Edward Doty at (312) 886–6057.

SUPPLEMENTARY INFORMATION: On

November 15, 1990, the Clean Air Act

Amendments of 1990 were enacted.

Pub. L. 101–549, codified at 42 U.S.C.

7401–7671q. Pursuant to section

107(d)(4)(A) of the Clean Air Act (CAA

or the Act), Vanderburgh County

(Evansville) was designated as

nonattainment for ozone and was

classified as marginal (see 56 FR 56694

(November 6, 1991)).

I. Background

The Indiana Department of

Environmental Management (IDEM)

submitted an ozone redesignation

request and maintenance plan for

Vanderburgh County (Evansville) on

November 4, 1993. On July 8, 1994 (59

FR 35044), the United States

Environmental Protection Agency

(USEPA) published a direct final

rulemaking approving the redesignation

of Vanderburgh County to attainment of

the National Ambient Air Quality

Standard (NAAQS) for ozone. On the

same day, a proposed rulemaking was

also published in the Federal Register

which established a 30-day public

comment period for the redesignation

approval and noted that, if adverse

comments were received regarding the

direct final rulemaking, the USEPA

would withdraw the direct final

rulemaking and would address the

adverse comments through a revised

final rulemaking. The USEPA received

adverse comments, and published a

withdrawal of the direct final

rulemaking on August 26, 1994 (59 FR

44040).

Subsequent to the July 8, 1994 direct

final rulemaking, the USEPA was

informed by the IDEM that a possible

violation of the ozone NAAQS had been

monitored at a privately-operated

industrial site owned by the Aluminum

Corporation of America (Alcoa) in

Warrick County. (At the time IDEM

contacted the USEPA concerning the

possible violation, the State had not yet

completed quality assurance of the data.

The violation, as noted below, was

subsequently quality-assured.) Warrick

County (designated as attainment for

ozone) adjoins Vanderburgh County to

the east. Because Warrick County can be

considered to be a nearby area

downwind of Vanderburgh County on

certain days, the USEPA questioned

whether the monitored violation in

Warrick County should be considered in

any subsequent rulemaking on the

redesignation of Vanderburgh County.

The IDEM indicated its intent to

investigate the high ozone values, and

requested that the USEPA not act on the

redesignation petition pending the

outcome of that technical investigation.

IDEM completed its investigation and

submitted the results to the USEPA on

June 5, 1995. IDEM’s investigation

concluded that the Alcoa data are

unusual, are biased high (relative to

peak ozone concentrations at other

monitors in the area during the May

through June, 1994 time period), and are

not representative of the Vanderburgh

County nonattainment area. IDEM

recommended that the USEPA should

proceed with the redesignation of

Vanderburgh County to attainment so

that the maintenance plan could become

federally enforceable.

The USEPA Technical Support

Document (TSD) for this proposed

rulemaking: (1) summarizes and

evaluates the redesignation request; (2)

analyzes recent State data for monitors

inside and outside of the Evansville

nonattainment area; (3) responds to

public comments on the July 8, 1994
12138 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

rulemaking; and (4) reviews the State’s

and public’s submittals and technical

concerns regarding the monitored ozone

NAAQS violation in Warrick County

and its impact on the redesignation of

Vanderburgh County.

This notice summarizes USEPA’s

review and analysis of the redesignation

request. Details of the review and

analysis are contained in USEPA’s TSD.

Comments received from the public

with regard to the July 8, 1994 proposed

rulemaking and received subsequent to

that proposal are also addressed in this

notice.

II. USEPA’S General Comments and

Conclusions

After a review of all available

information, the USEPA believes it is

reasonable to repropose the

redesignation of Vanderburgh County to

attainment and, thus, allow for formal

public review and comment on IDEM’s

technical support document and

USEPA’s evaluation. As described

below, the redesignation request for

Vanderburgh County satisfies the

specific criteria of section 107(d)(3)(E).

A critical issue, however, concerns the

ozone monitoring data indicating a

violation of the ozone standard in

Warrick County, Indiana, a county that

is part of the Evansville Metropolitan

Statistical Area (MSA) but is not part of

the Evansville ozone nonattainment

area. (The Evansville MSA consists of

Posey, Vanderburgh, and Warrick

Counties in Indiana and Henderson

County in Kentucky. The Evansville

ozone nonattainment area consists

solely of Vanderburgh County. For the

Evansville area, which is classified as

marginal nonattainment for ozone, the

USEPA does not require the entire MSA

to be designated as nonattainment for

ozone.) Those data, which are discussed

in detail later in this notice,

demonstrate that Warrick County has

experienced a current violation of the

ozone NAAQS based on five

exceedances of the ozone standard (0.12

parts per million, one-hour averaged,

not to be exceeded on average more than

one day per year at any monitoring site

in the area under consideration) that

were monitored in May and June of

1994. No violations of the ozone

NAAQS have been monitored in

Vanderburgh County itself since the

1988–1990 period.

The validity and significance of the

monitoring data showing a violation at

the Alcoa site in Warrick County has

been the subject of much review and

analysis by both the IDEM and the

USEPA. In its TSD reviewing the Alcoa

data and data from other ozone

monitoring sites in the area during the

period of the 1990 ozone NAAQS

violation, the IDEM contends that,

although the Alcoa data have met

quality assurance criteria, the data are

unusual, are biased high, and are not

representative of the Evansville

nonattainment area. The USEPA,

however, has reviewed the data and has

concluded that the data have met the

USEPA’s quality assurance criteria, are

valid, are acceptable for review of

attainment status.

The USEPA has also reviewed the

data and other pertinent information in

an effort to determine whether and to

what extent emissions from

Vanderburgh County contributed to the

ozone NAAQS violation in Warrick

County. The USEPA conducted this

evaluation because Warrick County

adjoins Vanderburgh County and

because section 107(d)(1)(A)(i) of the

Clean Air Act defines a nonattainment

area as an area that either itself violates

a standard that contributes to a standard

violation in a nearby area. If the USEPA

were to conclude that Evansville does

contribute significantly to

nonattainment of the ozone standard in

Warrick County, the language of section

107(d)(1)(A)(i) would present an

obstacle to taking final action

redesignating Vanderburgh County to

attainment.

The USEPA intends to take final

action approving the redesignation of

Vanderburgh County to attainment if

any of the following three events occur.

First, if Warrick County attains the

ozone standard prior to final action by

the USEPA on this redesignation

request, the USEPA would no longer

need to consider the issue of any

possible contribution of Vanderburgh

County to violations in Warrick County.

This could occur following the 1997

ozone season (April through October) as

the standard violation in Warrick

County was monitored in 1994; and

USEPA’s methodology for determining

attainment of the ozone NAAQS

involves the consideration of data only

from the most recent three years.

Second, the USEPA could take final

action approving the Vanderburgh

County redesignation request if it

determines that Vanderburgh County

does not significantly contribute to an

ozone nonattainment problem in

Warrick County. Third, the USEPA

could approve the Vanderburgh County

redesignation request if the USEPA

determines that the information

available is not sufficient to determine

whether or not Vanderburgh County

contributes significantly to a

nonattainment problem in Warrick

County.

To complete its review process, the

USEPA also seeks comment on whether

or not the Warrick County ozone

standard violation data should be

excluded from consideration of the

Vanderburgh County ozone attainment

status. Comments on this issue will

allow the public to address IDEM’s

proposed basis for approval of the

Evansville redesignation request. In

addressing this issue, commenters

should also take into consideration and

respond to the facts that the Warrick

County ozone standard violation has

been quality assured and that the Clean

Air Act and USEPA policy require the

consideration of the ozone standard

violation when reviewing the

attainment status of Vanderburgh

County.

The USEPA requests comment on all

of these issues in light of the

information and data in the docket,

including the analyses of the data and

other information performed by IDEM

and USEPA. The USEPA will carefully

and fully evaluate those comments and

the issues they raise before taking final

action regarding the Vanderburgh

County redesignation request.

At this time, the state of the science

of predicting and understanding the

formation and transport of ozone in the

Evansville MSA is incomplete. The

USEPA does not have the benefit of

ozone modeling information for the

Evansville MSA, such as would be

provided by the use of the Urban

Airshed Model. The USEPA recognizes

that the State of Indiana, along with 36

other states, is actively involved in the

super-regional ozone modeling analyses

being conducted through the Ozone

Transport Assessment Group (OTAG).

Although the Evansville MSA has been

included in the national Regional

Oxidant Modeling (ROM) modeling

domain and in the OTAG modeling

domain, the scope of these models is

regional in nature and is not conclusive

as to the impact of emissions from

Vanderburgh County on ozone

formation in the Evansville MSA.

The USEPA encourages the State of

Indiana to follow through on its

commitment to implement early the

contingency measures provided for in

the maintenance plan for Vanderburgh

County and to consider emission

controls beyond the boundaries of

Vanderburgh County as a means to

assure future good air quality in Warrick

County. The USEPA notes the

commitment made by the State of

Indiana to implement contingency

measures even prior to their being

triggered under provisions of the

maintenance plan and to work with the

local Evansville community and
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12139

surrounding areas to adopt additional

emission control programs and

regulations and to submit these

regulations as a revision to the State

implementation plan. The USEPA is

relying on the State to follow through on

that commitment in order to obtain

additional emission reductions that will

provide greater assurance of good air

quality in the Evansville MSA in the

future.

In support of this approach, the IDEM

has attended meetings with the

Evansville community to discuss the

ozone concentrations in the area and

appropriate control measures to reduce

emissions of ozone forming chemicals.

A broad-based community group called

the Action Committee for Ozone

Reduction Now (ACORN) has

recommended four measures to be

voluntarily adopted by the State and

local authorities to reduce emissions.

These four measures are: (1) high

volume low pressure paint gun change

outs for auto body refinishing and paint

spraying operations; (2) Stage I gasoline

vapor recovery; (3) pollution prevention

and education task force; and (4) less

polluting gasoline. ACORN suggests that

all remedial ozone reduction measures

shall apply to people and industry in

Vanderburgh County and adjacent

counties. The USEPA believes that these

measures applied in the Evansville area

will contribute to continued attainment

of the ozone standard in Vanderburgh

County and will contribute to improved

air quality in the downwind

communities.

The USEPA recently published an

Advanced Notice of Intent (ANI)

describing the OTAG process referred to

above and setting forth USEPA’s plans

to take action in 1997 to require that

control measures be adopted and

implemented to reduce emissions that

are transported to other areas and

contribute to high ozone concentrations

downwind of the emission sources (see

62 FR 1420 (January 10, 1997)). IDEM

has committed to participate actively in

this process and to implement emission

control measures resulting from this

process. This effort should lead to

regional ozone precursor reductions that

may significantly reduce the transport of

ozone into the Evansville area and may

result in further emission reductions

within the Evansville area itself. A

redesignation of Evansville to

attainment would not impede the

implementation of any emission

controls resulting from the OTAG

process or USEPA’s anticipated actions.

The USEPA believes that emission

reductions occurring as a result of

USEPA’s anticipated actions in 1997,

early implementation of contingency

measures committed to by the State of

Indiana, and implementation of

measures proposed by ACORN will

provide additional assurance that the air

quality in Vanderburgh County and its

downwind environs will be improved,

and that future violations of the ozone

NAAQS will not occur in these areas.

III. Technical Review

A. Redesignation Review Criteria

Under the CAA, designations can be

changed if sufficient data are available

to warrant such change. The CAA

provides the requirements for

redesignating a nonattainment area to

attainment. Specifically, section

107(d)(3)(E) provides for redesignation

if: (1) the Administrator determines that

the area has attained the National

Ambient Air Quality Standard

(NAAQS); (2) the Administrator has

fully approved the applicable

implementation plan for the area under

section 110(k); (3) the Administrator

determines that the improvement in air

quality is due to permanent and

enforceable reductions in emissions

resulting from implementation of the

applicable implementation plan and

applicable Federal air pollutant control

regulations and other permanent and

enforceable reductions; (4) the

Administrator has fully approved a

maintenance plan for the area as

meeting the requirements of section

175A; and (5) The State containing such

area has met all requirements applicable

to the area under section 110 and part

D.

The USEPA has provided guidance on

processing redesignation requests in

documents including the following:

1. ‘‘Part D New Source Review (part

D NSR) Requirements for Areas

Requesting Redesignation to

Attainment,’’ Mary D. Nichols, Assistant

Administrator for Air and Radiation,

October 14, 1994.

2. ‘‘Use of Actual Emissions in

Maintenance Demonstrations for Ozone

and Carbon Monoxide (CO)

Nonattainment Areas,’’ D. Kent Berry,

Acting Director, Air Quality

Management Division, November 30,

1993.

3. ‘‘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,’’ Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation, September 17,

1993.

4. ‘‘State Implementation Plan (SIP)

Actions Submitted in Response to Clean

Air Act (ACT) Deadlines,’’ John

Calcagni, Director, Air Quality

Management Division, October 28, 1992.

5. ‘‘Procedures for Processing

Requests to Redesignate Areas to

Attainment,’’ John Calcagni, Director,

Air Quality Management Division,

September 4, 1992.

6. ‘‘Contingency Measures for Ozone

and Carbon Monoxide (CO)

Redesignations,’’ G.T. Helms, Chief,

Ozone/Carbon Monoxide Programs

Branch, June 1, 1992.

7. State Implementation Plans;

General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990 (57 FR

13498), April 16, 1992.

B. Review Of The Redesignation Request

1. The area must have attained the

Ozone NAAQS.

For ozone, an area may be considered

as attaining the NAAQS if there are no

violations, as determined in accordance

with the regulation codified at 40 CFR

§ 50.9, based on three (3) consecutive

calendar years of quality assured

monitoring data. A violation occurs

when the ozone air quality monitoring

data show greater than one (1.0) average

expected exceedance per year at any site

in the area. An exceedance occurs when

the maximum hourly ozone

concentration exceeds 0.12 parts per

million (ppm). The data should be

collected and quality-assured in

accordance with 40 CFR part 58, and

recorded in the Aerometric Information

Retrieval System (AIRS) in order for it

to be available to the public for review.

The redesignation request for

Evansville relies on ozone monitoring

data for the years 1990 through 1996, to

show that Evansville is attaining the

NAAQS for ozone. IDEM has collected

quality assured data in Vanderburgh

County at two locations (or monitoring

sites) for the period of 1990 through

1996 showing attainment of the ozone

standard. In general, the USEPA

considers the three most recent years of

data for a redesignation request and the

three most recent years of data from

these two sites have no exceedances of

the ozone standard. These data are

quality assured and are recorded in the

AIRS. In addition, ozone monitoring

data has been collected at two sites in

Warrick County as downwind

monitoring sites for Evansville. The two

monitors at Boonville and Tecumseh

High Schools also demonstrate

attainment of the ozone standard. The

PSD industrial monitoring site at Alcoa

has collected valid data which recorded

a violation of the ozone standard for the
12140 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

most recent three years of data (1994–

1996).

As discussed above, there are issues

concerning the role of emissions from

Vanderburgh County in contributing to

a violation of the ozone NAAQS

monitored in 1994 in Warrick County.

As stated there, the USEPA is requesting

comment on these issues.

2. The Area must have a fully approved

SIP under Section 110(k); and the Area

must have met all applicable

requirements under Section 110 and

Part D.

Before Vanderburgh County

(Evansville) may be redesignated to

attainment for ozone, it must have

fulfilled the applicable requirements of

section 110 and Part D. USEPA

interprets section 107(d)(3)(E)(v) to

mean that, for a redesignation request to

be approved, the State must have met all

requirements that became applicable to

the subject area prior to or at the time

of the submission of the redesignation

request.

Vanderburgh County is covered by a

State Implementation Plan (SIP)

approved under section 110 of the CAA.

Indiana has implemented this SIP in

Vanderburgh County.

In the case of marginal ozone

nonattainment areas, such as

Vanderburgh County, the section

172(c)(1) Reasonably Available Control

Measures were superseded by section

182(a)(2) Reasonably Available Control

Technology (RACT) requirements,

which did not require newly-designated

marginal ozone nonattainment areas to

submit RACT corrections. See General

Preamble for the Implementation of

Title I, 57 FR at 13503, and the Volatile

Organic Compound (VOC) RACT fix-up

rulemaking published at 58 FR 49458.

Thus, no additional RACT submissions

were required for Vanderburgh County

to be redesignated. Also, by virtue of

provisions of section 182(a), marginal

areas were not required to submit a

demonstration that the SIP provides for

attainment.

The section 172(c)(3) base year

emissions inventory requirement has

been met by the submission and

approval of the 1990 base year inventory

required under subpart 2 of part D,

section 182(a)(1). (50 FR 31544, (June

20, 1994)). Indiana submitted a SIP

revision covering regulations requiring

the submittal of annual emission

statements by facilities with potential

VOC emissions equal to or exceeding 25

tons per year. A direct final rulemaking

approving this SIP revision was

published on June 10, 1994 (59 FR

29953).

As for the section 172(c)(5) New

Source Review (NSR) requirement,

USEPA has determined that areas being

redesignated to attainment need not

comply with the NSR requirement prior

to redesignation, provided that the area

demonstrates maintenance of the

standard without part D NSR in effect.

A memorandum from Mary D. Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994, titled

‘‘Part D New Source Review (part D

NSR) Requirements for Areas

Requesting Redesignation to

Attainment,’’ fully describes the

rationale for this view, and is based on

the Agency’s authority to establish de

minimis exceptions to statutory

requirements. See Alabama Power Co. v.

Costle, 636 F. 2d 323, 360–61 (D.C. Cir.

1979). Once the area is redesignated to

attainment, the Prevention of Significant

Deterioration (PSD) program, which has

been delegated to Indiana, will become

effective immediately. Additionally, the

USEPA has approved a NSR revision to

the Indiana SIP which meets the

requirements of part D of the Act. See

59 FR 51108 (October 7, 1994). This

NSR SIP revision became effective in

December 1994.

(a) Section 176 Conformity

Requirements

Section 176(c) of the Act requires

States to revise their SIPs to establish

criteria and procedures to ensure that,

before they are taken, Federal actions

conform to the air quality planning

goals in the applicable State SIP. The

requirement to determine conformity

applies to transportation plans,

programs and projects developed,

funded or approved under Title 23

U.S.C. or the Federal Transit Act

(‘‘transportation conformity’’), as well as

to all other Federal actions (‘‘general

conformity’’). Section 176 further

provides that the conformity revisions

to be submitted by the States must be

consistent with Federal conformity

regulations that the Act required the

USEPA to promulgate. Congress

provided for the State revisions to be

submitted one year after the date of

promulgation of final USEPA

conformity regulations.

The USEPA promulgated final

transportation conformity regulations on

November 24, 1993 (58 FR 62188) and

general conformity regulations on

November 30, 1993 (58 FR 63214).

These conformity rules require that

States adopt both transportation and

general conformity provisions in the SIP

for areas designated as nonattainment or

subject to a maintenance plan approved

under section 175A of the Act. Pursuant

to 40 CFR 51.396 of the transportation

conformity rule and 40 CFR 51.851 of

the general conformity rule, the State of

Indiana is required to submit a SIP

revision containing conformity criteria

and procedures consistent with those

established in the Federal rule.

However, the federal transportation

conformity regulations are currently

being amended for the third time.

Indiana intends to submit transportation

conformity regulations when the federal

regulations complete rulemaking.

Because the redesignation request was

submitted before these SIP revisions

came due, they are not applicable

requirements under section

107(d)(3)(E)(v).

Because areas are subject to the

conformity requirements regardless of

whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet adopted, the USEPA

believes it is reasonable to view these

requirements as not being applicable

requirements for purposes of evaluating

a redesignation request.

For the reasons just discussed, the

USEPA believes that the ozone request

for Vanderburgh County may be

approved notwithstanding the lack of

fully approved State transportation and

general conformity rules. See also the

Tampa, Florida ozone redesignation of

December 7, 1995 (60 FR 62748).

(b) Subpart 2 Requirements

Marginal ozone nonattainment areas

are subject to the requirements of

section 182(a) of subpart 2. Indiana has

met all of the applicable requirements of

that subsection with respect to the

Evansville area. The emissions

inventory required by section 182(a)(1)

has been approved. (See 59 FR 31544

(June 20, 1994)). The emission statement

SIP required by section 182(a)(3)(B) has

been approved. (See 59 FR 29953 (June

10, 1994)). As noted above, RACT

corrections were not required under

section 182(a)(2) for areas such as

Vanderburgh County that were not

designated nonattainment until after the

1990 CAA Amendments. Similarly,

section 182(a)(2) does not require the

submission of an Inspection and

Maintenance (I/M) SIP revision for

Vanderburgh County since the area was

not required to have an I/M program

before the enactment of the 1990 CAA

Amendments. Finally, the State need

not comply with the requirements of

section 182(a) concerning revisions to

the part D NSR program in order for the

Vanderburgh County area to be

redesignated for the reasons explained

above in connection with the discussion

of the section 172(c)(5) NSR

requirement.
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12141

3. The improvement in air quality must

be due to permanent and enforceable

reductions in emissions resulting from

the SIP, federal measures and other

permanent and enforceable reductions.

Implementation of VOC emission

controls, such as the Federal Motor

Vehicle Emission Control Program, and

permanent, enforceable emission

reductions from source closures have

led to VOC emission reductions. A

listing of major source VOC emissions

for 1988 and 1990 shows that stationary

source VOC emissions in Vanderburgh

County declined by 339 tons per year

(approximately 1.1 tons per day)

between 1988 and 1990. Permanent

VOC emission reductions due to source

closures and implementation of

emission controls totaled 570 tons per

year in the same period (some of this

emission reduction was offset by source

growth). Indiana asserts that these point

source emission reductions are

permanent and enforceable. Indiana

further states that it will not renew the

permits of closed sources, will require

these sources to undergo review under

PSD or NSR requirements if they seek to

restart, and will prohibit these facilities

from banking the pre-closure emissions

against future source growth.

4. The area must have a fully approved

maintenance plan meeting the

requirements of Section 175A.

Section 175A of the CAA sets forth

the elements of a maintenance plan for

areas seeking redesignation from

nonattainment to attainment. The

maintenance plan is a SIP revision

which provides for maintenance of the

relevant NAAQS in the area for at least

10 years after redesignation. A

September 4, 1992, USEPA

memorandum from the Director of the

Air Quality Management Division,

Office of Air Quality Planning and

Standards, to Directors of Regional Air

Divisions regarding redesignation

provides further guidance on the

required content of a maintenance plan.

An ozone maintenance plan should

address the following five areas: the

attainment inventory, maintenance

demonstration, monitoring network,

verification of continued attainment,

and a contingency plan. The attainment

emissions inventory identifies the

emissions level in the area which is

sufficient to attain the ozone NAAQS,

and includes emissions during the

period when the area attained the

NAAQS (the first three year period

when a violation of the NAAQS was not

recorded). Maintenance is demonstrated

by showing that future emissions will

not exceed the level established by the

attainment inventory. Provisions for

continued operation of an appropriate

air quality monitoring network are to be

included in the maintenance plan. The

State must show how it will track and

verify the progress of the maintenance

plan. Finally, the maintenance plan

must include contingency measures

which ensure prompt correction of any

violation of the ozone standard. The Act

also requires [section 175(b)] a second

SIP revision eight years after an area is

redesignated to attainment to assure

maintenance of the NAAQS for an

additional 10 years beyond the first 10

year maintenance period.

The details of the Evansville

maintenance plan are reviewed in the

April 26, 1994 TSD, which concludes

that the maintenance plan meets all of

the applicable requirements. The State

commits to continue monitoring of

ozone during the 10-year maintenance

period. Any changes in the monitoring

systems will be subject to USEPA

approval.

To help verify maintenance of the

standard, the State commits to require

stationary sources to annually submit

information on their emissions in

accordance with the States emission

statement rule (326 IAC 2–6). Data from

these emission statements and other

data sources will be used to determine

if emissions have exceeded 1990 base

year levels.

Finally, the State has selected a joint

set of possible contingency emission

control measures and a 2-level approach

for triggering of contingency measures.

A level I response occurs in the event

that the ozone NAAQS is violated. This

response entails conducting an analysis

to determine the level of control

measures needed to assure expeditious

future attainment of the ozone NAAQS.

Measures that could be implemented

quickly would be selected so as to be in

place within 12 months after the State

is aware of a NAAQS violation. (Note

that the State has not preselected

specific contingency measures to be

implemented in case a level I response

is required.) A level II response would

be implemented in the event that: (a)

The monitored ambient levels of ozone

exceed 0.115 ppm more than once in

any year at any site in the redesignated

area; (b) the level of VOC, Oxides of

Nitrogen (NOX), or Carbon Monoxide

(CO), emissions increase above the 1990

(attainment) emissions level; or (c) the

level of total VOC emissions for any

future year has increased above the level

recorded in the prior year sufficiently so

that an increase of the same magnitude

in the following year could result in a

level of emissions exceeding those

recorded in 1990 by five percent or

more. A level II response would consist

of a study to determine whether the

noted trends are likely to continue, and

if so, to determine control measures

necessary to reverse the trends, taking

into consideration ease and timing of

implementation as well as economic

and social considerations. The

contingency portion of the maintenance

plan for the Evansville area was found

to be acceptable. In addition,

demonstration of maintenance was

successfully made through emission

projections through 2006. (Note that the

use of 2006 covers a period extending

for ten ozone seasons from now and

complies with USEPA redesignation

policy given the State’s November 4,

1993 submittal date for a complete

redesignation request and the State’s

assumption of a two-year period for

USEPA’s processing of the rulemaking

on the redesignation request.) See the

April 26, 1994 TSD for a summary of the

contingency measures the State has

identified.

The emissions summary for VOC and

NOX are provided below for the

Vanderburgh County area:

TABLE 1.—VOC EMISSIONS IN TONS PER SUMMER DAY

Year Point

sources

Area

sources

Mobile

sources

Off-Road

mobile Biogenic Totals

1990 .......................................................................................................... 12.76 12.46 25.25 7.50 8.37 66.34

1995 .......................................................................................................... 13.74 12.82 20.77 7.74 8.37 63.44

2000 .......................................................................................................... 14.73 13.18 16.29 8.00 8.37 60.57

2006 .......................................................................................................... 15.91 13.61 10.91 8.28 8.37 57.08

2007 .......................................................................................................... 16.11 13.68 10.01 8.33 8.37 56.50
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TABLE 2. NOX Emissions in Tons Per Summer Day

Year Point

sources

Area

sources

Mobile

sources

Off-Road

mobile Biogenic Totals

1990 .......................................................................................................... 2.78 2.14 14.11 7.70 n.a. 26.73

1995 .......................................................................................................... 2.98 2.27 13.31 7.86 n.a. 26.42

2000 .......................................................................................................... 3.18 2.41 12.52 8.02 n.a. 26.13

2006 .......................................................................................................... 3.42 2.57 11.56 8.21 n.a. 25.76

2007 .......................................................................................................... 3.46 2.60 11.40 8.24 n.a. 25.70

Note that the 2007 emission estimates

were derived by the USEPA using

source growth rates provided by the

State.

The State commits to continuing the

operation of the monitors in the area. It

will also track the maintenance of the

area by regularly updating the emissions

inventory for the area.

If the monitored air quality levels

exceed the NAAQS, the contingency

plan will be triggered. In addition,

Indiana is required to submit a revision

to the maintenance plan eight years after

redesignation to attainment which

demonstrates that the NAAQS will be

maintained for a second 10 year period.

5. Implementation of All Requirements

of Section 110 and Part D of the Act

As indicated above, all requirements

of the Act applicable to this area have

been met through SIP revision

submittals. These SIP revisions have

been approved through final

rulemaking.

IV. Responses to Comments on the July

8, 1994 Direct Final Rulemaking

Five sets of comments were received

concerning the July 8, 1994 direct final

rulemaking on the redesignation of

Vanderburgh County to attainment of

the ozone standard. The summarized

comments and USEPA’s responses are

presented below:

Comment: A commenter objects to

redesignating Vanderburgh County to

attainment because of Vanderburgh

County’s lack of past performance in

dealing with the area’s ozone problem.

In support of this position, the

commenter submitted several

newspaper articles and an organization

publication noting the lack of such

action on the part of Vanderburgh

County/Evansville officials. The

commenter is concerned that

designating Vanderburgh County to

attainment of the ozone NAAQS will

only exacerbate an already existing

problem.

Response: During the years of 1990

through 1993, quality assured ozone

monitoring data were collected at six

sites in Indiana and at two sites in

Kentucky within or in the proximity of

the Evansville nonattainment area. No

violations of the ozone standard were

monitored during this period. Therefore,

the area’s ozone levels have shown

improvement over the 1987–1989 ozone

standard violation levels, which were

the basis for the nonattainment

designation for Vanderburgh County. At

the time of the redesignation request,

sufficient ‘‘clean’’ air quality data

existed to support the redesignation

request. Air quality data through 1996

from monitors within the Vanderburgh

County nonattainment area continue to

show attainment of the ozone standard.

Vanderburgh County is currently a

marginal ozone nonattainment area. The

Act provides only minimal ozone

precursor reduction requirements (the

correction of deficient rules and 1.1 for

1 offsets for major new sources) for such

an area. Since emission control rules,

such as RACT for stationary sources,

were not previously required and are

not currently required for the Evansville

area, leaving the nonattainment

designation in place for the area would

not result in significant new emission

reduction requirements for this area.

Reductions in emissions have been

gained through vehicle per mile

emission rate decreases through the

implementation of the Federal Motor

Vehicle Emission Control Program

(these emission rate decreases are offset

in part by increases in vehicle miles

traveled). In addition, permanent source

closures have occurred in the area as

noted in the State’s demonstration of

maintenance. The USEPA believes these

emission reductions will tend to result

in improved air quality.

Comment: A commenter objects to the

redesignation because the commenter

believes ozone levels in the vicinity of

the Evansville area are higher than those

reported for Vanderburgh County. The

commenter, referencing several

newspaper articles, believes that ozone

levels are not measured in the areas of

highest ozone concentrations.

Response: The USEPA has reviewed

ozone data for the Vanderburgh County

nonattainment area, as well as data from

outside the nonattainment area in

evaluating the redesignation request.

The ozone concentrations being

reported to the public in the newspaper

articles referenced by the commenter

were only from Vanderburgh County

monitors and did not include data from

adjoining counties, outside of the

nonattainment area. Ozone is also

monitored at three sites in adjoining

Warrick County. It is noted that higher

peak ozone concentrations may be

found in Warrick County. The extent,

however, of the impact of emissions

from Vanderburgh County on ozone

concentrations in Warrick County is

unclear.

Ozone, at relatively high

concentrations, and its precursors, most

notably VOC and NOx, can be

transported over considerable distances

downwind of a precursor source area.

Maximum ozone levels are generally

found 15 to 30 (or more) miles

downwind of the sources of ozone

precursors. Given this, IDEM considered

the 1990 through 1993 ozone data from

Vanderburgh County and counties

surrounding Vanderburgh County in the

redesignation request submitted on

November 4, 1993. These data showed

no violation of the ozone NAAQS prior

to the 1994 ozone season. The USEPA

considers the area covered in IDEM’s

data analysis to be adequate.

Comment: A commenter objects to the

redesignation of Vanderburgh County

for two reasons. The first reason is the

low use of Evansville buses. The

commenter believes that improving the

quality of the Evansville bus service will

increase ridership and contribute to

improving air quality. The second

reason is based on the commenter’s

concerns about the chemicals being

emitted by industries in the Evansville

area. The commenter is concerned that

some emissions are toxins and

carcinogens and that this problem

should be addressed before the area is

redesignated to attainment of the ozone

standard.

Response: The USEPA agrees with the

commenter that improved bus service

and increased citizen usage of buses

would help to reduce the emission of

ozone precursors. USEPA encourages

improvements in bus service and greater
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12143

usage to reduce pollutant emissions.

Such actions, however, cannot be

mandated by the USEPA. State and local

agencies are generally free to choose the

mixtures of transportation control

measures used to control pollutant

emissions. In addition, since the

Evansville area is classified as marginal

nonattainment for ozone, the Act does

not require such emission controls.

While the USEPA shares the

commenter’s concerns over chemicals

emitted by industries (some of the VOC

which act as ozone precursors are

possible toxins and carcinogens),

control of air toxins and carcinogens is

addressed under separate provisions of

the Act (section 112) and is expected to

result in a decline in these emissions in

the future. The designation of an area as

attainment or nonattainment for ozone

is only for the purpose of controlling

ozone. For redesignation purposes,

USEPA evaluates, among other factors,

whether the State has met all applicable

requirements for the area under Title I,

section 110 (State Implementation

Plans) and part D (nonattainment plan

provisions under section 172(c)).

USEPA has determined that the State

has met these requirements. While the

control of air toxins is the subject of

section 112 of the Act, not the SIP

program, the USEPA encourages States

to take VOC and toxins/carcinogens into

account when selecting control

measures to help assure maximum

environmental benefits from emission

control measures. The USEPA, however,

cannot compel such actions under the

Act for the purposes of controlling

ozone levels.

Comment: Commenters argue that the

redesignation of Vanderburgh County to

attainment is disapprovable on the

following bases:

1. The State, at the time of the

redesignation request submittal, had

failed to correct the State’s part D New

Source Review (NSR) regulations. The

State has failed to meet the Act’s

requirement that the SIP must comply

with Act and be fully approved at the

time the redesignation request is

submitted;

2. The State has failed to demonstrate

that the air quality improvements in the

Evansville area are due to permanent

and enforceable emission reductions.

The commenters argue that a September

4, 1992 USEPA redesignation policy

guidance is clear in requiring analysis of

whether the improved air quality has

resulted in part from either unique

meteorological conditions or temporary

changes in economic conditions. Air

quality improvements due to these air

quality impacts are not permanent, and,

therefore, are not creditable;

3. The State has failed to fully predict

the impacts of future transportation

projects on growth in vehicle miles

traveled and on mobile source

emissions; and

4. The USEPA has failed to consider

the impacts on downwind ozone

transport caused by the redesignation

and the associated loss of emission

control requirements.

Response: The following presents

USEPA’s responses to each of the

comments above in the order given:

1. USEPA believes that nonattainment

areas can be redesignated to attainment

of the ozone standard notwithstanding

the lack of a fully approved NSR

program meeting the requirements of

the Act and the absence of such an NSR

program from the contingency plan.

USEPA believes that not requiring a

fully approved NSR program as a

prerequisite to the submittal of the

State’s request for redesignation is

justifiable as an exercise of the USEPA’s

general authority to establish de

minimis exceptions to statutory

requirements. See Alabama Power Co. v.

Costle, 636 F.2d 323, 360–61 (D.C. Cir.

1979). A memorandum from Mary D.

Nichols, Assistant Administrator for Air

and Radiation, dated October 14, 1994,

titled ‘‘Part D New Source Review (part

D NSR) Requirements for Areas

Requesting Redesignation to

Attainment,’’ fully describes the

rationale for this view, and is based on

the Agency’s authority to establish de

minimis exceptions to statutory

requirements. Once the area is

redesignated to attainment, the PSD

program, which has been delegated to

Indiana, will become effective

immediately. Additionally, it is noted

that the USEPA has approved a NSR

revision to the Indiana SIP which meets

the requirements of part D of the Act.

See 59 FR 51108 (October 7, 1994). This

NSR SIP revision became effective in

December 1994.

2. The September 4, 1992 USEPA

policy guidance referred to by the

commenter states that ‘‘attainment

resulting from temporary reduction in

emission rates (e.g., reduced production

or shutdowns due to temporary adverse

economic conditions) or unusually

favorable meteorology would not qualify

as an air quality improvement due to

permanent and enforceable emission

reductions.’’ Neither the State nor the

USEPA has neglected these issues in

preparing and analyzing Indiana’s

redesignation request. Rather, the

USEPA believes that the State has

adequately demonstrated that the

improvement in air quality was not due

to temporary economic downturn or

unusually favorable meteorology.

With respect to the issue of temporary

emission reductions due to economic

downturn, the USEPA noted in this

rulemaking and the July 8, 1994 direct

final rulemaking (59 FR 35048) that the

State has shown that attainment of the

ozone standard is attributable to

permanent and enforceable emission

reductions. These emission reductions

have resulted from permanent source

closures and implementation of the

Federal Motor Vehicle Emission Control

Program. These emission reductions are

permanent and enforceable. In the case

of source closures, the source permits

associated with these sources have been

terminated and will not be reissued.

Reopening of these sources would

involve subjecting these sources to new

source review requirements. It is

USEPA’s judgment that these emission

reductions have contributed to the air

quality improvement observed prior to

the redesignation request submittal.

With respect to the issue of unusual

meteorology, the State has compared the

average meteorological parameters of

maximum daily temperature, daily

mean wind speed, percent of possible

sunshine, and relative humidity for the

periods of May through August, 1990

through 1992, with the 30-year (1961–

1990) averages for these parameters. The

1990–1992 averages were found to be

equivalent to the 30-year averages with

only minor differences. Based on a

comparison of these average parameters,

it was concluded that the 1990–1992

period was not atypically nonconducive to ozone formation.

3. The USEPA conformity rule (58 FR

62218) requires the States to conduct

conformity analyses for both

nonattainment areas and attainment

areas subject to maintenance plans. The

State of Indiana is preparing its

conformity rule to comply with

USEPA’s conformity rule. Therefore,

any major federally funded and State

funded projects in the redesignated area

would be addressed through State

conformity analyses and would be

subject to the emissions budget

established by the maintenance plan.

Minor changes in the public

transportation system would not be

subject to the conformity analyses. The

State’s predictions of future year

emissions did assume growth in mobile

source activity. Moreover, the review

required by the maintenance plan if

ozone levels over 115 ppb are monitored

gives the State the opportunity to adjust

those predictions in light of

transportation projects that were not

known at the time of submission of the

maintenance plan.

4. As discussed above, in accord with

section 107(d)(1)(A), the USEPA is
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considering information regarding the

extent of the contribution of sources in

Vanderburgh County to its downwind

environs and is requesting comment on

that issue in this notice. The USEPA

notes, however, that this redesignation

would not result in an increase in

emissions from Vanderburgh County.

Existing emission controls will not be

dropped or relaxed as a consequence of

the redesignation. Indeed, the

maintenance demonstration projects

stable or declining emissions from

Vanderburgh County sources during the

10-year maintenance period, which

means that any emission reduction

contribution from Vanderburgh County

sources would not be expected to

decline after redesignation.

Furthermore, as Vanderburgh County

itself is attaining the ozone NAAQS,

even if it remained designated

nonattainment, under section 181(b)(2)

of the Act, it would not be ‘‘bumpedup’’ to a moderate classification, and no

new emission controls would be

required to be adopted. Thus, additional

emission controls would not be required

as a consequence of a disapproval of the

Vanderburgh County redesignation. The

USEPA further notes that, if it

concludes, on the basis of the OTAG

modeling results or otherwise, that

additional controls are needed in

upwind areas to reduce transported

emissions having effects on other states,

a SIP-call to require such measures

would be based on section 110(a)(2)(D)

of the Act and could apply to areas

regardless of whether they are

designated attainment or nonattainment

of the ozone NAAQS. Therefore, the

redesignation of Vanderburgh County to

attainment for ozone will not preclude

the USEPA from obtaining emission

reductions if needed to prevent

excessive ozone transport from this area

to other states.

V. IDEM Technical Support Document

Additional comments were submitted

by IDEM during the comment period for

the direct final rulemaking. These

comments were primarily directed to

the unusual nature of the 1994 ozone

standard violation recorded in Warrick

County. The validity of this ozone

standard violation and its impacts on

Indiana’s redesignation request are

discussed in the TSD for this proposed

rulemaking. The State’s comments

submitted during the public comment

period are addressed through that

discussion.

VI. Public Comments Subsequent to the

1994 Ozone Standard Violation in

Warrick County, Indiana

Subsequent to the 1994 ozone

standard violation discussed above, a

number of public comments were

received by the USEPA regarding the

redesignation of Vanderburgh County to

attainment of the ozone standard. These

comments can be divided into two main

subgroups. The first subgroup of

comments from United States

Congressmen, the State of Indiana,

Evansville and Vanderburgh County

local agency representatives, and

business and industrial representatives

favor the redesignation of Vanderburgh

County to attainment. Many of these

commenters are concerned about the

possible economic impacts of

Vanderburgh County remaining a

nonattainment area. These commenters

raised the following general comments

in support of the redesignation:

Comment: Many commenters support

IDEM’s analysis of the 1994 ozone data

and the IDEM conclusion that the Alcoa

data may reflect a positive bias during

the April 22 through June, 1994 period.

Response: IDEM’s review of the 1994

ozone data is discussed in detail above.

The USEPA’s conclusions regarding this

analysis and the validity of its

conclusions are contained in the

Background and Conclusion section of

the TSD for this rulemaking.

Comment: Some commenters have

noted that the Warrick County ozone

standard violation, having occurred

outside of Vanderburgh County, should

not be used to disapprove the

redesignation of Vanderburgh County.

Response: The USEPA believes that a

thorough review of all data is necessary

before taking final action on the State’s

request. Among other factors, the

Evansville nonattainment area is

attaining the ozone standard based on

quality assured data from monitors

located within Vanderburgh County. On

the other hand, even though the Alcoa

monitor is located outside the

Evansville nonattainment area, the

USEPA also considered the data from

this monitor in reviewing and

evaluating the State’s request.

As explained above, on the basis of

both section 107(d)(1) of the Act and

USEPA’s written redesignation policy

(September 4, 1992 memorandum titled

‘‘Procedures for Processing Requests to

Redesignate Areas to Attainment’’ from

John Calcagni to Air Division Directors),

ozone data from all ozone monitors in

an area and its downwind environs are

to be considered when reviewing a

redesignation request. This means that

ozone data from Warrick County and

other counties surrounding

Vanderburgh County must be

considered when reviewing the

redesignation request for Vanderburgh

County. Of course, these analyses must

also consider wind directions leading to

high ozone levels in these outlying

areas. The temporal and meteorological

aspects of ozone formation typically

produce peak ozone concentrations 15

to 30 miles downwind (or farther for

large source areas) of the ozone

precursor source area. This means that

peak ozone concentrations can be

produced outside of a single county

source/nonattainment area. Since

Warrick County is downwind of

Vanderburgh County on some high

ozone days, the USEPA is technically

justified in considering ozone data from

this County when evaluating the

attainment status of Vanderburgh

County.

Comment: Many commenters note

that IDEM has developed a viable

maintenance plan to deal with emission

increases above the 1990 emission total

(the attainment emissions level) and to

deal with future violations of the ozone

standard.

Response: USEPA concurs with this

comment as reflected in the April 26,

1994 TSD and believes that the State’s

maintenance plan shows continued

attainment of the standard through the

year 2006. (USEPA has projected

continued attainment through 2007

using source growth rates provided by

the State. Although the State, in

compliance with USEPA maintenance

demonstration policy, projects

continued attainment through 2006, the

timing of rulemaking on this issue led

the USEPA to consider projection of

emissions through 2007.) Permanent

and enforceable controls such as the

Federal motor vehicle control program

are in place and should ensure that

emissions will not exceed the level of

the 1990 attainment base year during

the 10-year maintenance period.

Furthermore, the maintenance plan

contains contingency measures in the

event of a violation of the ozone

NAAQS.

The maintenance plan has not

accounted for the emissions increases

resulting from traffic growth associated

with the operation of a proposed

floating casino in the area or with traffic

that will be drawn to the new Toyota

truck plant planned for Gibson County,

which adjoins Vanderburgh County to

the north. The State and USEPA

currently lack data to assess the impacts

of these traffic impacts. Consequently,

the USEPA is proposing approval at this

time. The USEPA also notes that the

maintenance plan provides additional
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12145

protection against unanticipated

emission increases as it contains triggers

for assessment of the need for additional

emission controls if the emissions are

subsequently projected to increase

above the 1990 base year emissions

level. Through this process, previously

unanticipated emission increases could

trigger the need for additional emission

controls. It should also be noted that if

the emission increases resulting from

the traffic growth of concern here cause

a future violation of the ozone NAAQS,

the maintenance plan will obligate the

State to select additional emission

control measures to eliminate the air

quality problem. In addition, the State

will revise the maintenance plan within

eight years and can include the

additional emissions resulting from the

traffic growth at that time.

Comment: Commenters in favor of the

redesignation claim that Vanderburgh

County has been singled out for

nonattainment status even though

emissions from Posey and Warrick

Counties, Indiana and Henderson and

Daviess Counties, Kentucky may have

also contributed to the ozone standard

violation at the Alcoa site and the

elevated ozone levels at the other

monitoring sites in the Evansville area.

Response: The USEPA does not

believe that Vanderburgh County is

being singled out. It was initially

designated as nonattainment in 1991 as

a consequence of an ozone standard

violation within its boundaries, and the

USEPA is now proposing to redesignate

it to attainment. The USEPA has

evaluated the available information

concerning the meteorology and the

sources of the emissions that led to the

ozone standard violation in Warrick

County, and is requesting comment on

issues regarding the effect of the

contribution of Vanderburgh County

emissions to that violation. The

meteorological data indicate that

emissions from other areas may have

contributed to the exceedances

monitored in Warrick County.

Comment: Several commenters assert

that never before has one single monitor

been used to override the evidence of all

remaining monitors in a region. The

commenters believe the evidence in

favor of redesignating Vanderburgh

County to attainment is overwhelming

and that the USEPA should not base a

decision with such economic impact on

questionable information when all other

information points toward attainment of

the ozone standard.

Response: When an area’s attainment

status is determined, each monitor in

the area is judged independently. Ozone

is not directly emitted into the

atmosphere, but results from complex

photochemical reactions involving

organic compounds, oxides of nitrogen

and solar radiation. The relationships

between primary emissions and ozone

formation tend to produce large

separations spatially and temporally

between the major precursor emission

sources and the areas of high ozone

pollution. This suggests that the

meteorological transport process and

relationships between sources and sinks

(reactions with airborn chemicals or

reactions with surfaces that locally

reduce ozone levels) need to be

considered in the placement of

monitoring stations and in the

evaluation of the monitoring data.

USEPA’s redesignation policy

requires attainment of the ozone

standard at all ozone monitors in an

area seeking redesignation to

attainment. Each monitor in an area is

judged independently because ozone

formation, transport, and sinks can lead

to spatial differences in monitoring

results. Nonetheless, monitoring results

at a given site can represent the impact

of emissions from a large upwind source

area. In addition, each monitor

represents a geographic region within a

community. Therefore, USEPA believes

it is appropriate and necessary for each

monitor in the area to meet the standard

to ensure people in these areas are not

being exposed to levels above the

standard. Because of distribution of

sources within an area, the nature of

ozone formation and the effects of

meteorology, it is not expected that all

monitors will show equivalent readings.

Within a nonattainment area, if any one

monitor shows a violation of the

standard, the area is considered to be in

nonattainment of the standard. The

USEPA has always considered ozone on

a per monitor basis, refusing to

redesignate an area to attainment if the

ozone standard is violated at any

monitoring site in the nonattainment

area. Monitors outside of the

nonattainment area are evaluated for

impacts from the area under

consideration. The CAA in section

107(d)(1)(A)(i), as noted above, defines

nonattainment as ‘‘any area that does

not meet (or contributes to ambient air

quality in a nearby area that does not

meet) the national primary or secondary

ambient air quality standard for the

pollutant, * * *’’.

The USEPA promulgated federal

monitoring regulations that established

minimum monitor requirements and

criteria for uniform monitor siting and

quality assurance procedures (40 CFR

part 58). Only data meeting these siting

and quality control requirements are

used in regulatory decisions. The valid,

quality assured violation of the ozone

standard recorded in Warrick County

thus must be considered by the USEPA

when considering the redesignation of

Vanderburgh County.

Comment: Several commenters

believe that the Alcoa monitoring site,

as a special purpose/prevention of

significant deterioration monitor site,

has not ever been part of Evansville’s

ambient monitoring system, and,

therefore, data from this site should not

be considered when reviewing the

designation of Vanderburgh County.

Response: The IDEM has never

formally identified the monitors

belonging in the monitoring network for

each nonattainment area. In IDEM’s

March 15, 1991, submittal to support

the State’s proposal for the classification

and designation of Vanderburgh County

as marginal nonattainment for ozone

and to exclude surrounding counties

from this designation, IDEM included

ozone data from the Alcoa site as part

of the monitoring system used to judge

the attainment status of Vanderburgh

County and to justify the exclusion of

Warrick County from the nonattainment

area. The CAA requires nonattainment

areas with moderate and above

classifications to include the entire

MSA to assure that the entire source

area is included in the nonattainment

area. In the case of marginal ozone

nonattainment areas, such as the

Evansville area, the CAA gives the

States and USEPA discretion in

determining the size of the

nonattainment area. In 1991, the USEPA

accepted IDEM’s recommendation to

restrict the nonattainment area to only

Vanderburgh County.

The Alcoa monitor has historically

been used to make decisions about the

Evansville area. There is, however, no

‘‘official’’ monitoring system declared

by Indiana for the Evansville area. The

USEPA has in the past considered data

from PSD monitors when making

designation decisions as long as the data

met the quality assurance standards for

ambient air networks. The quality

assurance tests conducted on the Alcoa

monitor were all well within the

required limits. All data in the AIRS

data system have been quality assured

by the State air agencies as having met

the requirements for valid data to be

used in the decision-making process.

Comment: A commenter notes that,

on two of the exceedance days at the

Alcoa site, winds were from the east

placing this site upwind of the

Evansville area not downwind of it.

Response: The USEPA agrees with the

commenter. It is apparent from the

meteorological data that emissions from

areas other than Vanderburgh County

may have contributed to the 1994 ozone
12146 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

standard violation at the Alcoa site.

Emissions from other areas also appear

to have contributed to the ozone

standard exceedances on the days on

which the Alcoa site was downwind of

Vanderburgh County (the IDEM has

noted relatively high background ozone

concentrations on these days), as well as

on the other two exceedance days.

Comment: Commenters note that

Evansville industries have spent

millions of dollars to reduce emissions,

particularly emissions of VOC, NOx,

and chloroflourocarbons to improve air

quality and protect the environment.

They believe the redesignation of

Vanderburgh County to attainment

would recognize this effort and

encourage further progress.

Response: It is acknowledged that the

Evansville industries have implemented

emission controls to comply with

various requirements of the Clean Air

Act. Some of these controls probably

have contributed to lower VOC

emissions (the controls mentioned by

the commenter, however, were

implemented to reduce

chlorofluorocarbon emissions, which

are nonreactive and have little or no

impacts on ground level ozone

concentrations). To this extent, these

facilities are recognized for contributing

to lower ozone concentrations. Without

these controls, the ozone levels could

have been even higher in 1994. It should

be noted that industries in Vanderburgh

County are not required to have VOC

RACT emission controls because

Vanderburgh County was attainment

prior to the enactment of the 1990 CAA.

Comment: A commenter, noting the

recent public discussions of the

Evansville redesignation and the

possible inadequacy of the current

ozone standard to protect public health,

questions the ability of the area to attain

a tighter standard. This commenter also

questions the assertions of local

physicians blaming ozone levels for

triggering many asthma attacks during

the summer months. The commenter

believes the physicians should consider

the fact that Evansville area is located

amidst an agricultural area and that the

resulting particulates and pollen along

with ozone, heat, and humidity may

play a role in these asthma attacks at

this time of the year.

Response: The standard against which

Evansville’s attainment is judged is the

current 0.12 parts per million ozone

standard. The USEPA is not basing its

decision on a possible, future tighter

ozone standard, and the ability or

inability of the Evansville area to attain

a tighter standard is not an issue in this

proposal.

With regard to impacts of other factors

in causing respiratory problems, it is

agreed that such factors may have

caused some of the respiratory problems

observed in the area. It is noted that

many health studies have confirmed the

negative health impacts that ozone has

on the respiratory system. These studies

were the basis of the current ozone

standard. Recent health studies further

elaborate on these impacts and are the

subject of USEPA’s current proposal to

revise the ozone standard. See 61 FR

65716, December 13, 1996. The

connection between ozone and asthma

attacks is discussed in that proposal and

is not further discussed here.

Comment: A commenter believes the

siting of the Alcoa monitor is incorrect

since this site may be impacted by

particulate emissions from the Alcoa

plant and the local coal-fired power

plant and by ozone generated locally by

high power lines carrying electricity

from the power plant and to the Alcoa

plant.

Response: As noted in the June 5,

1995 TSD submitted by IDEM, IDEM did

consider the factors mentioned by the

commenter. These factors were ruled

out as significant contributors to the

high ozone levels monitored at the

Alcoa site. The USEPA agrees with

IDEM’s analysis.

Comment: A commenter questions the

quality assurance of the Alcoa monitor.

This commenter also wants to know

why, if the Alcoa monitor was part of

the monitoring system used to evaluate

Evansville air quality, were no

industrial representatives or the public

previously aware of its existence?

Response: Review of the quality

assurance records in AIRS and the June

5, 1995 IDEM TSD show that Alcoa and

the State actively participated in the

quality assurance of the Alcoa monitor.

Quality assurance records show that the

monitor was performing well within

acceptable quality assurance limits

during the period with the 1994 ozone

standard violation. This monitor

recorded ozone concentrations with

very small error levels (small percentage

differences from calibration and

precision check ozone input levels)

during this period. In addition, the State

has quality assured Alcoa’s ozone

calibrator unit, removing this as a

significant source of ozone

concentration errors.

As evidenced in the March 15, 1991

ozone designation/classification

submittal, IDEM has been aware of the

Alcoa ozone monitor for some time. In

fact, IDEM has supplied Alcoa ozone

data for inclusion in AIRS since 1988.

The AIRS data are available to the

public.

Comment: A commenter is concerned

that retaining the marginal

nonattainment status for Vanderburgh

County will ultimately result in its

being bumped up to moderate

nonattainment with serious economic

consequences. The commenter believes

that local environmental groups are not

aware of this possibility nor thoroughly

understand the consequences of such an

action.

Response: The USEPA evaluated the

attainment status of Vanderburgh

County at the end of 1993 as required

by the CAA. Monitors in Vanderburgh

County were indicating attainment of

the ozone standard in 1993 and

continue to record attainment of the

ozone standard. As noted above, this

fact provides a basis for not bumping up

Vanderburgh County to the

classification of moderate

nonattainment.

The local environmental groups are

aware of the impacts of a bump-up of

the area to moderate nonattainment. As

evidenced by the comments addressed

elsewhere in this proposed rulemaking,

some environmental groups have

requested such a bump-up of the area.

Comment: A commenter asserts that

local environmental groups err in

believing that the Evansville ozone

problem is primarily due to industrial

emissions. The environmental groups

fail to recognize that 38 percent of the

VOC emissions originate from mobile

sources and that 19 percent of the

emissions come from area sources. With

the future emission controls required

under other portions of the Clean Air

Act, such as Maximum Available

Control Technology (MACT) for sources

of toxic emissions and New Source

Performance Standards (NSPS), the

relative emissions contributions from

industrial sources will decline. This

means that control of other sources

should be considered.

Response: The commenter is correct

that sources other than industrial

sources may also share in contributing

to the 1994 ozone standard violation. As

evidenced in IDEM’s 1990 base year

inventory for Vanderburgh County (the

source of the emission percentages

expressed by the commenter), many

sources contribute to this problem. It is

reasonable to request that control of

these emissions be considered along

with the control of emissions from

industrial sources.

Comment: A commenter states that

USEPA should not revise the ozone

standard as recommended by the

environmental groups in the Evansville

area. The commenter believes that

tightening of the standard would make

it very difficult for the area to achieve
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12147

the goals of the State’s maintenance

plan. The commenter recommends that

the 0.12 parts per million ozone

standard remain in effect.

Response: The revision of the ozone

standard is not an issue in this action.

In this action, USEPA is solely

concerned with the attainment and

maintenance of the current ozone

standard.

The second subgroup of comments

was submitted by environmental groups

and residents of the Evansville

metropolitan area. These comments

generally recommend disapproval of the

redesignation of Vanderburgh County to

attainment or criticize the USEPA for

not following appropriate procedures in

rulemaking and making decisions on

this issue. These comments are

summarized below:

Comment: Commenters object to

USEPA’s October 11, 1995 decision to

redesignate Vanderburgh County to

attainment based on the following facts/

points:

a. The Alcoa ozone standard violation

has been quality assured by the State of

Indiana as being valid;

b. The Alcoa monitor has been and

continues to be part of the Evansville

area monitoring system;

c. Redesignating Vanderburgh County

in light of the 1994 ozone standard

violation violates USEPA’s own

guidelines;

d. No public hearing in Vanderburgh

County was held to address the impacts

of the 1994 ozone standard violation;

and,

e. Negative health impacts from ozone

can occur at levels well below the

current standard.

Response: The overall responses to

these comments are reflected in this

entire proposed rulemaking. The

following responses, however, are made

to respond to the commenter’s specific

points:

a. USEPA and IDEM agree that the

data establishing the Alcoa ozone

standard violation have been quality

assured and are valid. IDEM, however,

believes that a significant monitor bias

can exist even when the monitor is

producing quality assured results.

IDEM’s assertion of monitor bias is

supported by the daily maximum ozone

concentrations at the Alcoa site as

compared to those for the other

monitors in the area for the April-June,

1994 period and review of similar data

for other periods.

The USEPA has determined that the

Alcoa data are valid and quality

assured. The quality assurance data

demonstrate that the monitor was

performing correctly. The source of the

high ozone concentrations measured at

the Alcoa site is unclear. Source areas

outside of Vanderburgh County appear

to be contributing to the high ozone

concentrations observed at the Alcoa

site.

b. As noted above, the IDEM has

never formally identified the monitors

belonging in the monitoring network for

each nonattainment area. In IDEM’s

March 15, 1991, submittal to support

the State’s proposal for the classification

and designation of Vanderburgh County

as marginal nonattainment for ozone

and to exclude surrounding counties

from this designation, IDEM included

ozone data from the Alcoa site as part

of the monitoring system used to judge

the attainment status of Vanderburgh

County and to justify the exclusion of

Warrick County from the nonattainment

area.

As noted above, the Alcoa monitor

has historically been considered when

making decisions about the Evansville

area. There is, however, no ‘‘official’’

monitoring system declared by Indiana

for the Evansville area. It should be

noted that an IDEM monitor at the Alcoa

site has replaced the Alcoa monitor.

c. As explained earlier in this notice,

consistent with its existing guidance,

the USEPA has evaluated the 1994

exceedances monitored at the Alcoa site

and the information available

concerning the sources of the emissions

resulting in those exceedances. The

USEPA believes that this proposal is

consistent with USEPA’s existing

guidance regarding redesignations and

the consideration of downwind

monitored ozone concentrations. As

stated earlier, the USEPA is requesting

comment on this issue.

d. The comment is correct. It should

be noted that the USEPA is reopening

the comment period for the rulemaking

on this redesignation and allowing an

extended 60 day comment period.

e. On December 13, 1996, the USEPA

proposed to revise the current ozone

standard (61 FR 65716). The health

effects of ozone concentrations below

the current ozone standard are an issue

being addressed in that rulemaking

proceeding and are beyond the scope of

this action, which is limited to whether

or not the current ozone standard has

been attained in Vanderburgh County.

Comment: A number of commenters

have requested the reopening of a public

review, including public hearings and a

public comment period, of the

redesignation request, USEPA’s decision

on this issue, and the implications of

the 1994 ozone standard violation.

Some commenters have recommended

that this issue be the subject of judicial

review.

Response: The USEPA will reopen the

public comment period on this issue.

The 1994 ozone standard violation, June

5, 1995 IDEM technical analysis

submittal, and December 7, 1995 IDEM

supplemental data all add significant

new information to the data and

information discussed in the July 8,

1994 USEPA rulemaking. On this basis

and given the public interest in this

issue, it is appropriate for the USEPA to

repropose the rulemaking and to reopen

the public comment period for this

rulemaking.

Comment: Commenters question the

validity of the maintenance

demonstration submitted with the

redesignation request and the prospects

for continued maintenance of the ozone

standard. These commenters point out

the initiation of river boat gambling in

Evansville will draw in excess of 2

million additional cars or vehicle trips

to the area per year. It is assumed that

this growth in vehicle emissions was

not factored into the State’s

maintenance plan.

Response: The maintenance plan

submitted by IDEM was complete and

approvable at the time it was submitted

on November 4, 1993. A public hearing

on the maintenance plan was held by

IDEM on August 24, 1993, in Evansville,

Indiana. There was one person who

commented on the maintenance plan

and expressed concerns about a lack of

sanctions in the plan should it not be

properly implemented. IDEM’s response

was that, if the State fails to implement

the plan, the USEPA may impose

sanctions allowed under the CAA, such

as withholding federal highway funds.

The maintenance plan does take into

account a measure of growth in mobile

source emissions. To the extent that the

maintenance plan does not include

traffic growth due to the casino river

boat and to the new Toyota truck plant

in Gibson County, it may need to be

reviewed when data on the traffic

growths become available to determine

the effect of these developments on the

maintenance plan predictions. As noted

elsewhere in this proposed action, this

will be the case if the emission increases

cause the Vanderburgh County VOC or

NOx emissions to increase above

attainment year base levels. Also, the

transportation conformity process

should prevent growth in mobile source

emissions from exceeding the ‘‘budget’’

in an approved maintenance plan.

The maintenance plan also has a

margin of safety to allow for future

growth in mobile sources as well as

other sources. The Evansville

maintenance plan has an extra 9 tons

per day of VOC safety margin in 2006

and in 2007, and 1 ton per day NOX
12148 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

safety margin in 2006 and in 2007. It

should also be noted that the

maintenance plan does contain a trigger

requiring extra analyses based on VOC

emissions exceeding the 1990 base year

level. In addition, the requirements for

additional emission controls would be

triggered should the increased VOC

emissions cause a future violation of the

ozone NAAQS. In the event of a future

ozone standard violation, contingency

measures would be invoked to correct

the violation and bring the area back

into attainment.

Comment: One commenter stated that

preparation of the USEPA TSD after the

October 11, 1995 USEPA decision to

redesignate Vanderburgh County is, at

best, superfluous, and, at worse, a direct

disregard of the rules and laws under

which USEPA is supposed to operate.

Response: The October 11, 1995, letter

referred to by the commenter did not

serve to redesignate Vanderburgh

County; this can only be done through

a rulemaking action such as this, with

opportunity for public comment. It

should also be recognized that the

October 11, 1995 letter was not

developed without considerable review

of the available data by IDEM (as

evidenced by IDEM’s June 5, 1995

technical support document) and

USEPA (USEPA had already given

considerable thought to this issue in

preparing to respond to comments on

the July 8, 1994 direct final rulemaking).

Many hours were spent before October

11, 1995, by both agencies reviewing the

data and drawing initial conclusions

regarding the merits of the 1994 ozone

standard violation at the Alcoa site as

well as other issues raised by the public.

It should also be recognized that the

USEPA believed it was appropriate to

move ahead with rulemaking to

redesignate Vanderburgh County to

attainment despite the violation of the

ozone standard at the Alcoa site in

Warrick County. As noted in the

October 11, 1995 letter, this decision

was based in part on a commitment by

the IDEM to implement its maintenance

plan. USEPA is relying on this

commitment to implement one or more

measures contained in the maintenance

plan and others that are as needed to

address any ozone air quality problem

in the Evansville MSA. Finally, as noted

elsewhere in this proposed rulemaking,

the USEPA is taking public comments

for another 60 days from the date of this

proposed action before making a final

decision on redesignation request.

Submitted comments will be addressed

in a future final rulemaking action.

Obviously, the October 11, 1995 letter

does not represent a final conclusion on

this issue.

Comment: Some commenters

recommend, based on 1994 and 1995

data, that Vanderburgh County remain

designated as nonattainment for the

ozone standard and bumped up to a

classification of moderate.

Response: When the USEPA

evaluated marginal areas for attainment

status at the end of 1993, Vanderburgh

County and surrounding areas were

demonstrating attainment of the ozone

standard. The 1994 and 1995 data for

monitors in Vanderburgh County

continue to show attainment of the

standard. Consequently, bump up of

Vanderburgh County to a classification

of moderate is not justified.

Comment: A commenter notes that

the Alcoa monitor recorded 14 hours of

ozone standard exceedances in 1994

and that additional exceedances of the

standard were recorded in Boonville in

1995.

Response: USEPA’s TSD for this

proposed rulemaking thoroughly

discusses the ozone standard

exceedances at the Alcoa monitor. With

regard to the 1995 ozone standard

exceedance at the Boonville site, it must

be noted that this site has not recorded

a violation of the ozone standard given

the small number of exceedances

recorded at this site in the last three

years of data collection; the site has

recorded less than one ozone standard

exceedance per year during the last

three years.

Comment: A commenter objects to the

fact that IDEM’s June 5, 1995 TSD was

never subjected to a public review or a

public hearing. IDEM’s TSD is viewed

as being seriously flawed as to its

application of science. IDEM’s

conclusions in the TSD conflict with the

conclusion (in the June 5, 1995 TSD and

elsewhere) that the Alcoa data are

quality assured. The commenter finds

IDEM’s conclusion of ‘‘unexplained

monitor bias’’ to be scientifically

unfounded.

Response: As noted above and below,

USEPA agrees that the June 5, 1995

IDEM technical analysis and other

related data should be subjected to

public review. This is part of the basis

for USEPA reproposing rulemaking on

this action and reopening the public

comment period on this issue.

Comment: A commenter notes that

USEPA’s monitoring staff have

indicated through internal USEPA

memoranda that, as indicated by AIRS

data, if there was monitor bias, it is

more important to note that significant

negative monitor biases are indicated for

the Boonville, Tecumseh High School,

and Scott School monitors during the

April 20 through June, 1994 period. The

commenter interprets USEPA

memoranda as indicating that these

monitors may have been subject to ¥11

percent biases. The commenters note

that this level of bias was sufficient to

explain the concentration differences

between the Alcoa monitored ozone

concentrations and the ozone

concentrations monitored at the other

‘‘downwind’’ monitoring sites. In

addition, the commenter notes that

increasing ozone levels by 11 percent at

the negatively biased monitors would

add 2 days of ozone standard

exceedance to the Boonville site (three

exceedances in two years considering

the 0.131 parts per million exceedance

in 1995 at this site) and 1 day of ozone

standard exceedance to the Tecumseh

High School site.

Response: The August 18, 1995

USEPA memorandum referred to by the

commenter presents the annual

precision upper and lower 95 percent

confidence limits for the four sites

operated by Indiana in the Evansville

area. These data present ranges of

precision data, but by no means imply

that the monitors were operating with

specific biases during the May through

June, 1994 episodes. Although the data

imply, for example, that the Boonville

monitor tested lower than the actual test

concentration, the data do not imply

that the Boonville monitor operated at a

¥11 percent bias. The precision

estimates for the Boonville monitor

implied only a ¥1.2 to ¥3.6 percent

difference between the actual

concentration and the monitored

concentration. The small size of the

precision and audit data set led to the

relatively large negative precision

estimate at the lower end of the 95

percent confidence limit. The precision

data do not indicate that the differences

in ozone concentrations between the

Alcoa and Boonville monitors during

the April 22 through June, 1994 period

can be simply or entirely explained on

the basis of differences in quality

assurance for the two monitors.

It should also be noted that the use of

the precision data in a manner as used

by the commenter to draw conclusions

regarding derived non-biased ozone

concentrations is technically

unacceptable. If the ozone monitors

meet quality assurance limits, as all

monitoring data included in AIRS have,

it is inappropriate to modify the ozone

concentrations based on precision data.

Comment: Commenters note that

Vanderburgh County has been

designated as nonattainment for ozone

for a number of years and that the

USEPA, State, and local agencies have

done little or nothing to correct this

problem. One commenter believes that

the State’s and local agency’s attempts
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12149

to deal with the ozone problems through

an Ozone Action Days program are

inconsequential. Therefore, the

commenters believe that the area does

not deserve a redesignation to

attainment of the ozone standard and

that a redesignation to attainment will

assure that no effective actions are

taken.

Response: Initially, it should be noted

that although Vanderburgh County has

been designated as nonattainment, it has

in fact been attaining the ozone standard

since 1990 because no monitors in

Vanderburgh County have recorded a

violation of the ozone standard during

that time period. Furthermore, it is

incorrect to conclude that no emission

reductions have been implemented in

the Evansville area. Through the Federal

Motor Vehicle Emission Control

Program, the USEPA has brought about

reductions in vehicle per mile emission

rates. The Vanderburgh County

maintenance plan estimates a 14%

reduction in VOCs during the 1990 to

2006 time period because of cleaner

automobiles. The maintenance plan in

conjunction with other Act

requirements, such as conformity,

should prevent these reductions from

being negated by increases in vehicle

miles of travel and other emission

increases. The State has adopted the

general and transportation conformity

rules, and submitted these rules to the

USEPA on January 23, 1997. In

addition, the State has terminated

certain source permits subsequent to

source closures to gain permanent

emission reductions. All of these actions

have reduced emissions in a permanent

manner.

It should be noted that Vanderburgh

County is classified as a marginal ozone

nonattainment area. Under the Clean

Air Act, such an area is required to do

little in the way of additional emission

reductions beyond the impacts of the

national programs, such as the Federal

Motor Vehicle Emissions Control

Program. In terms of emission

reductions, the State has complied with

the Clean Air Act redesignation

requirements. It should also be noted

that, as discussed earlier, VOC RACT

emission controls on stationary sources

are not required in Vanderburgh

County.

Comment: A commenter notes that

IDEM has correctly asserted that the

Evansville ozone problem is regional in

nature and that the problem should be

dealt with on a regional basis. It is noted

that, besides the regional nature of VOC

emissions, the Evansville area is

impacted by NOX emissions from

significant sources in a much larger

area. In addition, the commenter

believes that mobile source emissions

must be dealt with over a larger

geographical area (the commenter,

nonetheless, believes that Vanderburgh

County should remain designated as

nonattainment for ozone).

Response: The USEPA agrees with

many of these comments. The ozone

data, both the Alcoa monitor ozone

standard exceedances and the elevated

ozone levels at other monitors, under

various meteorological conditions imply

that the high ozone levels in the

Evansville area may originate from an

area significantly larger than just

Vanderburgh County. The State is

encouraged to consider emission

controls from a larger area to help

maintain the ozone standard and to

lower peak ozone levels if necessary to

eliminate a future ozone standard

violation.

The USEPA also agrees that NOx

emissions and motor vehicle emissions

contribute to the elevated ozone

concentrations. Control of these

emissions will help maintain the ozone

standard.

Comment: A commenter, noting that

no ozone standard violations have been

recently recorded in Vanderburgh

County, recommends that the

nonattainment designation of

Vanderburgh County be retained to

protect the air quality in the lower Ohio

Valley area. This commenter believes

that, at minimum, the USEPA should

redesignate Warrick County to

nonattainment of the ozone standard

even if the USEPA is ‘‘forced’’ to

redesignate Vanderburgh County to

attainment.

Response: It is correct that no ozone

standard violations have been recorded

in Vanderburgh County during the most

recent three years (1994–1996), thus

demonstrating that Vanderburgh County

is attaining the ozone standard.

Furthermore, for the reasons explained

above regarding the uncertainties

connected with the determination of the

extent of Vanderburgh County’s

contribution to the ozone concentrations

monitored in Warrick County, the

USEPA believes it is appropriate to

propose approval of the Vanderburgh

County redesignation request at this

time.

With respect to the status of Warrick

County itself, USEPA notes that it has

several options available to it in dealing

with a violation in an attainment area,

USEPA may: choose to redesignate the

area to nonattainment; issue a SIP call;

take enforcement action if the violation

appears to be caused by compliance

failures; or encourage the State to

require more controls in the area

(without an official SIP call).

Currently, there is a stakeholders

process underway to determine what

controls are needed to address the

Warrick County violation. The USEPA

believes it is appropriate to give the

stakeholders group (composed of

representatives from the State, local

officials, local industry, environmental

groups, academia, and private citizens)

an opportunity to solve the local air

quality problems. If this process fails,

USEPA can then use its authority, e.g.,

to issue a SIP call to the area or

redesignate the area to nonattainment.

The USEPA also notes that it expects to

be taking steps in 1997 to require

reductions in regional emissions as a

response to the OTAG conclusions that

will reduce ozone transport into the

Evansville area. This may help to

correct the Warrick County air quality

violation.

Comment: A commenter believes that

it is USEPA’s policy to consider all

ozone monitors in an area to determine

the attainment status of the area.

Therefore, the commenter believes

USEPA must consider the data from the

Alcoa site in reviewing the attainment

status of Vanderburgh County and

surrounding counties.

Response: The USEPA agrees with

this comment. See the response to

comments above.

Comment: Several physicians object

to the redesignation of Vanderburgh

County based on concerns over chronic

effects produced by ozone during the

peak ozone periods and observations of

increased pulmonary hospital

admissions during these periods. These

physicians urge the USEPA to not

ignore the high ozone levels at the Alcoa

monitoring site.

Response: The USEPA believes that, if

Vanderburgh County satisfies the

statutory criteria for redesignation,

including attainment of the current

standard, it should be redesignated to

attainment. In proposing this

redesignation, the USEPA has not

ignored the high ozone levels at the

Alcoa monitoring site but has carefully

analyzed those monitored

concentrations and attempted to

determine the sources of the ozone

precursors that resulted in those

monitored readings. This action is

premised on the 0.12 ppm one-hour

standard, which is the standard now in

effect and which was established in

accordance with sections 108 and 109 of

the Act to protect public health. The

USEPA, however, has recently proposed

revising the current ozone standard (61

FR 65716). That rulemaking is the

appropriate forum for the submission of

comments regarding the health
12150 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

protections afforded by the ozone

standard.

Comment: A group of physicians and

college professors have evaluated the

Alcoa 1994 ozone data and have

determined that the data are valid for

purposes of evaluating the area’s

attainment status. They believe that the

May 23, June 20, and June 21, 1994 data

confirm that Vanderburgh County

emissions have contributed to an ozone

standard violation and that

Vanderburgh County should retain its

ozone nonattainment status.

Response: As noted in this notice, the

USEPA considers the data from the

Alcoa site to be valid and relevant to the

redesignation review. The good

performance of the Alcoa monitor in

quality assurance tests support the

validity of the Alcoa ozone standard

exceedances. However, the USEPA has

also considered the meteorological

patterns during this time period. As

discussed above, the USEPA is

requesting comment on the issues

related to the potential contribution of

emissions from Vanderburgh County to

the violation in neighboring Warrick

County in light of the data and

information in the Docket.

The USEPA encourages the State of

Indiana to implement emission controls

over an area larger than Vanderburgh

County, and to follow through on its

commitment to implement its

maintenance plan contingency measures

and to work with the local Evansville

community and surrounding areas to

adopt emission control programs and

regulations, and submit these

regulations as part of a State

implementation plan revision.

Comment: Commenters believe that

the Alcoa monitor is located in an area

where one may expect ozone levels

resulting from Evansville area emissions

to maximize. They believe the USEPA

intends to ignore the Alcoa data and this

fact of typical ozone formation, thus

violating USEPA procedures.

Response: The USEPA agrees with the

commenters that the Alcoa monitor is in

a location where relatively high ozone

levels may be expected. Since this

monitor is approximately 15 miles from

Evansville, this site is a good choice for

a peak downwind ozone site for the

Evansville area. As should be evident

from today’s notice, USEPA has no

intention of ignoring the Alcoa data.

The validity of these data and their

implications in this matter have been

given very serious consideration. Even

though the Alcoa monitor is located

outside the Evansville nonattainment

area, the USEPA did consider the data

from this monitor in reviewing and

evaluating the State’s request.

Comment: A commenter notes that he

has seen recent indications of degraded

air quality at sporting events attended

by his child. During softball games on

warm days, he has observed an

increased incident of itchy, irritated

eyes, and breathing difficulties, such as

coughing and breathlessness. A

particular incident, in which a player

had to leave the field due to breathing

difficulties, was not preceded by

strenuous activity and resulted in the

child being taken to a local hospital for

observation. The child’s breathing

difficulties could not be attributed to

any preexisting condition and her

condition improved after she was

removed from contact with the outside

air. For the future of the children in the

area, the commenter believes

Vanderburgh County should remain

marginal nonattainment for ozone.

Response: The USEPA acknowledges

the commenter’s observations of

possible negative health effects from air

pollution. Unfortunately, the

commenter has not equated these

observations with the peak ozone

concentrations on the days when these

health effects were observed. It is not

clear that they were observed in an area

and at a time with high ozone

concentrations.

Comment: Several citizens have

expressed concern that the USEPA has

simply given in to political pressure to

redesignate Vanderburgh County to

attainment to support future industrial

growth. Several of these citizens have

children who suffer from allergies and

respiratory problems. Other citizens are

concerned about a high number of

cancer-related deaths and the dying of

trees.

Response: The USEPA recognizes that

there may be illness associated with

exposure to high levels of ozone. The

current ozone standard (0.12 ppm) is a

health-based standard which the

Agency has proposed to revise, as noted

above. Concerns over public health have

been heard; the State and the local

community are committed to adopting

additional controls in Evansville and

the surrounding areas above and beyond

those already being implemented in

order to further reduce emissions.

The USEPA has seriously considered

the data in this issue. The USEPA, while

weighing the various issues in this case,

is very concerned about the impacts of

its decisions on public health, as well as

establishing the proper source-receptor

relations to assess accountability for

measured air quality levels.

Comment: Several commenters have

expressed an interest in the placement

of ozone monitors in Posey County or,

more specifically, in Mt. Vernon.

Response: In the present rulemaking,

USEPA must base its decision on the

monitoring data available. Additionally,

USEPA notes that IDEM has indicated a

willingness to expand its ozone

monitoring network to include Posey

County.

VII. Proposed Action

The USEPA proposes to approve the

redesignation of Evansville

(Vanderburgh County) to attainment for

ozone and to approve the maintenance

plan for the area.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for redesignation. Each request

shall be considered separately in light of

specific technical, economic, and

environmental factors and in relation to

relevant statutory and regulatory

requirements.

VIII. Interim Implementation Policy

(IIP) Impact

On December 13, 1996, USEPA

published proposed revisions to the

ozone and particulate matter NAAQS

(61 FR 65716 and 61 FR 65638). Also on

December 13, 1996, USEPA published

its proposed policy (61 FR 65752)

regarding the interim implementation

requirements for ozone and particulate

matter during the time period following

any promulgation of a revised ozone or

particulate matter NAAQS. This IIP

includes proposed policy regarding

ozone redesignation actions submitted

to and approved by the USEPA prior to

the promulgation of a new ozone

standard, as well as those submitted

prior to and approved by the USEPA

after the promulgation of a new ozone

standard.

Complete redesignation requests

submitted and approved by EPA prior to

the promulgation date of the revised

ozone standard will be allowed to stand

based on the maintenance plan’s ability

to demonstrate attainment of the current

one-hour standard and compliance with

existing redesignation criteria. Any

redesignation requests submitted prior

to promulgation of the revised ozone

standard, but which are not approved by

the USEPA prior to that promulgation

date, must also include a maintenance

plan which demonstrates attainment of

both the current one-hour standard and

the revised ozone standard to receive

final approval by the USEPA of

redesignation to attainment.

As discussed above, the USEPA

proposes to approve the Evansville

redesignation request as demonstrating

attainment under the current one-hour

ozone standard. If the USEPA does not

take final action prior to the
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 12151

promulgation of the revised ozone

standard and the request is otherwise

approvable, the USEPA will work with

the IDEM to as quickly as possible to

supplement the maintenance plan to

demonstrate attainment and

maintenance of the revised ozone

standard.

IX. Administrative Requirements

A. Executive Order 12866

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995 memorandum from Mary D.

Nichols, Assistant Administrator for Air

and Radiation. The Office of

Management and Budget (OMB) has

exempted this regulatory action from

Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., the USEPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, the USEPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

Redesignation of an area to attainment

under section 107(d)(3)(E) of the CAA

does not impose any new requirements

on small entities. Redesignation is an

action that affects the status of a

geographical area and does not impose

any regulatory requirements on sources.

The Administrator certifies that the

approval of the redesignation request

will not affect a substantial number of

small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, the USEPA

must prepare a budgetary impact

statement to accompany any proposed

or final rule that includes a Federal

mandate that may result in estimated

costs to State, local, or tribal

governments in the aggregate; or to the

private sector, of $100 million or more.

Under Section 205, the USEPA must

select the most cost-effective and least

burdensome alternative that achieves

the objectives of the rule and is

consistent with statutory requirements.

Section 203 requires the USEPA to

establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

The USEPA has determined that the

approval action proposed does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new Federal requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

Dated: March 5, 1997.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 97–6510 Filed 3–13–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 97–88; RM–9031]

Radio Broadcasting Services;

Centennial, WY

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission requests

comments on a petition filed by Red

Rock Broadcasting proposing the

allotment of Channel 224A at

Centennial, Wyoming, as the

community’s first local aural

transmission service. Channel 224A can

be allotted to Centennial in compliance

with the Commission’s minimum

distance separation requirements with a

site restriction of 11.9 kilometers (7.4

miles) east to avoid a short-spacing to

the licensed site of Station KIQZ(FM),

Channel 224A, Rawlins, Wyoming. The

coordinates for Channel 224A at

Centennial are North Latitude 41–19–03

and West Longitude 105–59–55.

DATES: Comments must be filed on or

before April 28, 1997, and reply

comments on or before May 13, 1997.

ADDRESSES: Federal Communications

Commission, Washington, DC 20554. In

addition to filing comments with the

FCC, interested parties should serve the

petitioner, or its counsel or consultant,

as follows: Pamela C. Cooper, Roberts &

Eckard, P.C., 1150 Connecticut Ave.,

NW., Suite 1100, Washington DC 20036

(Counsel for Petitioner).

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

97–88, adopted February 26, 1997, and

released March 7, 1997. The full text of

this Commission decision is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW., Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–6430 Filed 3–13–97:45 am]

BILLING CODE 6712–01–F

47 CFR Part 73

[MM Docket No. 96–127; RM–8805]

Radio Broadcasting Services; Kula, HI

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule; dismissal.

SUMMARY: This document dismisses a

petition filed by Sonia A. Humphrey

seeking the allotment of FM Channel

244A to Kula, Hawaii, based upon the

lack of interest by the petitioner or any

other interested party to provide

information, as requested in the Notice

of Proposed Rule Making to establish

that Kula constitutes a bona fide

‘‘community’’, as that term is defined

for purposes of Section 307(b) of the

Communications Act, as amended by

the Telecommunications Act of 1996,