56944 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

(p) Approval—On December 27, 2000,

Wisconsin submitted a one-hour ozone

attainment demonstration plan as a

revision to the Wisconsin State

Implementation Plan (SIP).

Supplements to the December 27, 2001

plan were submitted on May 28, 2001,

June 6, 2001, and August 29, 2001. This

plan includes a modeled demonstration

of attainment, rules for the reduction of

ozone precursor emissions, a plan to

reduce ozone precursor emissions by

three percent per year from 2000 to

2007, an analysis of reasonably

achievable control measures, an analysis

of transportation conformity budgets, a

revision of the waiver for emission of

oxides of nitrogen, and commitments to

conduct a mid-course review of the

area’s attainment status and to use the

new MOBILE6 emissions model.

[FR Doc. 01–27721 Filed 11–9–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[IN136–2; FRL–7088–5]

Approval and Promulgation of Air

Quality Plans; Indiana; Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is fully approving

State Implementation Plan (SIP)

revisions submitted by the Indiana

Department of Environmental

Management (IDEM) for attainment of

the 1-hour ozone standard in the

Chicago-Gary-Lake County ozone

nonattainment area. These SIP revisions

are required by Section 182 of the Clean

Air Act. This action approves the

following: An ozone attainment

demonstration; a plan demonstrating

how progress in emission reductions

will be achieved by specified milestone

years through the area’s attainment date

of 2007 (i.e. a post-1999 Rate of Progress

Plan (ROP)); a contingency measures

plan for both the ozone attainment

demonstration and the post-1999 ROP

plan; a reasonably available control

measure (RACM) analysis; NOX waiver

revisions; motor vehicle emissions

budgets; and commitments to complete

a mid-course review and to recalculate

the motor vehicle emissions budgets

using MOBILE6. Also, EPA is

incorporating into the SIP a portion of

an agreed order between U.S. Steel

(currently USX Corporation) and the

IDEM to establish a coke plant process

water treatment plant at its Gary Works.

We proposed approval of these SIP

revision elements on August 3, 2001 (66

FR 40802).

DATES: This final rule is effective

December 13, 2001.

ADDRESSES: You can access copies of the

SIP revision request and documents

relevant to this rulemaking at the

following address: U.S. Environmental

Protection Agency, Region 5, Air and

Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604. (We

recommend that you telephone Patricia

Morris at (312) 353–8656 before visiting

the Region 5 Office).

FOR FURTHER INFORMATION CONTACT:

Patricia Morris, Regulation

Development Section, Air Programs

Branch (AR–18J), U.S. Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, Telephone number (312) 353–

8656, morris.patricia@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever

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

EPA.

The supplemental information is

organized in the following order:

I. What Is EPA Approving In This Action?

II. What Previous Action Has Been Taken Or

Proposed On This SIP Revision?

III. Are There Related Elements that Need to

be Federally Approved?

IV. What Public Comments were Received on

the Proposed Approval of Indiana’s 1-

hour Ozone Attainment Demonstration?

A. Comments on the August 3, 2001,

proposal.

B. Comments on the December 16, 1999,

proposed conditional approval.

V. Final Rulemaking Action.

VI. Administrative Requirements.

I. What Is EPA Approving in This

Action?

The EPA is approving SIP revisions

submitted by the State of Indiana on

December 21, 2000, for purposes of

attainment of the 1-hour ozone standard

in the Chicago-Gary-Lake County ozone

nonattainment area (the Indiana portion

of this bi-state ozone nonattainment area

includes Lake and Porter Counties,

Indiana). We are approving (1) an ozone

attainment demonstration

demonstrating attainment by 2007, (2) a

post-1999 ozone ROP plan with

associated ROP conformity budgets, (3)

a revision to the NOX waiver, (4) a

contingency measures plan for both the

ozone attainment demonstration and the

post-1999 ROP plan, (5) the motor

vehicle emissions budgets for the 2007

attainment year, until such time that a

revised budget is submitted and found

adequate for conformity purposes as

called for by the state in its commitment

to recalculate and apply a revised

budget for conformity within two years

of the formal release of MOBILE6, (6) a

RACM analysis, (7) a commitment to

conduct a mid-course review of the

ozone attainment plan, and (8) an

agreed order between U.S. Steel

(currently USX Corporation) and the

IDEM signed by IDEM on March 22,

1996, which requires U.S. Steel to

establish a coke plant process water

treatment plant at its Gary Works.

Today’s action finalizes full approval of

Indiana’s 1-hour ozone attainment

demonstration SIP revision as meeting

the requirements of sections 182(c)(2)

and (d) of the Clean Air Act (CAA).

II. What Previous Action Has Been

Taken or Proposed on This SIP

Revision?

EPA published a Notice of Proposed

Rulemaking (NPR) for the Indiana ozone

attainment demonstration SIP for the

Lake and Porter Counties portion of the

Chicago ozone nonattainment area on

December 16, 1999 (64 FR 70514). In

that NPR, we proposed to conditionally

approve the 1-hour ozone attainment

demonstration SIP revision submitted

by Indiana on April 30, 1998. This

proposed conditional approval was

based on the State’s submitted ozone

modeling analysis and the State’s

commitments to adopt and submit a

final ozone attainment demonstration

and a post-1999 ROP plan, including the

necessary State air pollution control

regulations, by December 31, 2000. We

proposed, in the alternative, to

disapprove this attainment

demonstration plan, if, by December 31,

1999, the State did not select an

emissions control strategy associated

with its submitted ozone modeling

analysis and submit adequate motor

vehicle emissions budgets for VOC and

NOX for the ozone nonattainment area

that complied with EPA’s conformity

regulations and that supported

attainment of the 1-hour ozone

standard. We also provided that the

State should submit, by December 31,

1999, an enforceable commitment to

conduct a mid-course review of the

ozone attainment plan in 2003.

The State met the submittal

requirements of the proposed

conditional approval, and submitted a

final ozone attainment demonstration

and post-1999 ROP plan on December

21, 2000.

Since the State largely replaced the

April 30, 1998 ozone attainment

demonstration in the December 21, 2000

submittal, the August 3, 2001 NPR

primarily focused on the more recent

ozone attainment demonstration. As

such, this final rule also focuses on the

December 21, 2000 version of the ozone

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56945

attainment demonstration and the

comments received on EPA’s August 3,

2001 proposal. This notice of final

rulemaking (NFR), however, also

addresses the public comments received

with regard to the December 16, 1999

NPR.

The attainment demonstration we are

approving today demonstrates

attainment of the 1-hour ozone standard

by the 2007 attainment year.

III. Are There Related Elements That

Need To Be Federally Approved?

There are a number of related

elements which are part of the ROP and

attainment demonstration. These related

elements are detailed in this section

along with the citations for approval.

Several elements have been acted upon

in final form by EPA in previous notices

and several are being acted upon in

today’s notice.

The attainment demonstration SIP

revision depends significantly on the

new NOX emission reductions resulting

from the implementation of NOX

emission control regulations for major

EGUs, major non-EGU boilers and

turbines, and major cement kilns. Other

State emission control regulations,

applicable in Lake and Porter Counties,

affecting the attainment of the ozone

standard and the post-1999 ROP in the

ozone nonattainment area have

previously been adopted by the State

and approved by the EPA.

On September 27, 2001 EPA signed

the final rule approving Indiana’s NOX

emission control regulations for major

EGUs, major non-EGU boilers and

turbines, and major cement kilns. The

approval of these State NOX control

rules is being addressed in a separate

rulemaking action.

In the September 14, 2001 Federal

Register (66 FR 47887) EPA approved

Indiana’s Cold Cleaner Degreasing rule

(326 IAC 8–3–8). This rule and the

reductions from this rule are part of the

ROP and contingency measure

reductions. The approval was effective

on October 15, 2001.

In today’s notice EPA is taking final

action on the post-1999 ROP plan. EPA

is also taking final action on all

outstanding contingency plan

requirements. As proposed in the

August 3, 2001 notice, the current ROP

plan is adequate to cover the prior

contingency requirements. The post1999 ROP plan meets all outstanding

contingency plan requirements, and the

State has met all contingency planning

requirements. As noted in the August

proposal, the post-1999 ROP plan

contains excess emission reductions

sufficient to provide contingency

measures for the 15 percent and post1996 ROP plans. It is therefore not

necessary for the State to revisit the

contingency plans for the 15 percent

ROP plan and the post-1996 ROP plan.

In this action EPA is approving

contingency requirements for those

plans as effectively being met by the

current ROP and contingency plans.

Other related SIP actions are being

acted upon in this final notice. These

include the Mid-Course Review

Commitment from IDEM, and the

commitment to recalculate the mobile

source transportation conformity

budgets within one or two years after

MOBILE6 is officially released.

Indiana committed to revise within

two years after the official release of

MOBILE6, the 2007 attainment

demonstration budgets and to revise the

ROP conformity budgets. The State air

agency (IDEM) has discussed the

commitment with the transportation

community and has discussed the fact

that no new conformity determinations

can be made in the second year of the

commitment without an adequate

MOIBLE6 budget. As we proposed on

July 28, 2000 (65 FR 46383), the final

approval action we are taking today on

the 2007 attainment demonstration

budgets will be effective for conformity

purposes only until revised motor

vehicle emissions budgets are submitted

and we have found them adequate. In

other words, the budgets we are

approving today as part of the

attainment demonstration will apply for

conformity purposes only until there are

new, adequate budgets consistent with

the States’ commitments to revise the

budgets. The revised budgets will apply

for conformity purposes as soon as we

find them adequate.

We are limiting the duration of our

approval in this manner because the

States have committed to revise them.

Therefore, once we have confirmed that

the revised budgets are adequate, they

will be more appropriate than the

budgets we are approving for conformity

purposes now. If the revised budgets

raise issues about the sufficiency of the

attainment demonstration, EPA will

work with States on a case-by-case

basis.

In this notice EPA is approving the

mobile source emissions budgets

submitted with both the post-1999 ROP

and the attainment demonstration. The

budgets for the 2007 attainment year are

9.4 TPD of VOC and 24.29 TPD of NOX.

The VOC budget for the ROP for 2002

is 13.13 TPD and the VOC budget for

2005 is 10.99 TPD. These budgets were

found adequate effective June 13, 2001,

as posted on the EPA website at

www.epa.gov/otaq/traq (once there,

click on the ‘‘conformity’’ button).

The Mid-Course Review commitment

and MOBILE6 commitment are

discussed in detail in the August 3,

2001, proposed rulemaking. In today’s

action, EPA is approving the

commitments to conduct a Mid-Course

Review and to revise the motor vehicle

emissions budgets.

All required State emission control

regulations and related SIP elements

needed to support the ozone attainment

demonstration and the post-1999 ROP

plan have been approved by the EPA.

IV. Did We Receive Public Comments

on the Proposed Approval of Indiana’s

1-Hour Ozone Attainment

Demonstration?

We published a proposed approval of

Indiana’s 1-hour ozone attainment

demonstration SIP revision on August 3,

2001 (66 FR 40802). The public

comment period closed on September 4,

2001. We received one set of comments

on the proposed rulemaking. Although

the comments were not sent to the

person listed in the Federal Register

notice as the one to receive comments,

we determined that the commenter

intended to submit them in respect to

the proposal and, thus are responding to

the comments here. A closely related

rulemaking was published on December

16, 1999 (64 FR 70514). In that notice,

we proposed conditional approval of an

earlier 1-hour ozone attainment

demonstration, submitted by Indiana on

April 30, 1998. We received a number

of comments on the December 1999

proposed rulemaking. The 1-hour ozone

attainment demonstration SIP revision

package submitted by Indiana in

December 2000 essentially replaced

their earlier 1998 submittal. However, in

this final rulemaking, we also address

the relevant comments received on our

December 1999 proposed conditional

approval.

A. Comments on the August 3, 2001

Proposal

Comment: The commenter states that

the plan represents a very important

step forward for improving air quality in

Lake and Porter Counties, Indiana and

that they have long advocated that

LaPorte County (to the east of Porter

County) should also be designated as

nonattainment and included in the SIP.

Response: The USEPA agrees that the

attainment demonstration plan

represents an important step forward for

improving air quality in Lake and Porter

Counties and indeed for improving air

quality in the entire Lake Michigan

basin.

The commenter’s statement that

LaPorte County should be designated

nonattainment is outside the scope of

56946 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

1 Guidance on the Use Of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

2 Ibid.

this rulemaking. This rulemaking

addresses the approvability of the 1-

hour ozone attainment demonstration

for the existing nonattainment area and

does not address redesignating existing

areas. Although LaPorte County has

experienced exceedances of the 1-hour

standard, it is not monitoring

nonattainment for the 1-hour ozone

standard. During the past three years

(1998 through 2000) the monitoring in

LaPorte County recorded only one

exceedance day. LaPorte County would

need to experience more than three

exceedance days over a three-year

period to violate the 1-hour ozone

standard. Nor does the preliminary 2001

ozone monitoring data indicate a

violation of the 1-hour standard.

Therefore, the monitoring data does not

indicate that LaPorte County should be

designated nonattainment for the 1-hour

standard. Moreover, EPA sees no need

to include LaPorte County as part of the

Chicago nonattainment area. It is

important to note that LaPorte County is

part of the Lake Michigan modeling

domain which has been modeled as part

of the Chicago-Gary-Lake County

attainment demonstration modeling.

Thus, the ozone modeling for the

Chicago and Milwaukee nonattainment

areas (Indiana, Illinois and Wisconsin)

indicates that the SIPs for these areas

are expected to reduce emissions to an

extent that the entire domain will be

attaining the 1-hour ozone standard.

Comment: A commenter has been an

active participant in the Indiana NOX

rulemaking which will provide

important contributions to meeting the

1-hour ozone standard. The commenter

would like to be notified if EPA does

not approve the rules or if they are

approved with conditions.

Response: The NOX SIP rules

submitted by Indiana in final form on

August 20, 2000, were proposed for

approval by the EPA on July 2, 2001, (66

FR 34864). The final rule approving

these State rules was signed by the EPA

on September 27, 2001 and will be

published in a separate rulemaking

action.

Comment: The commenter urges the

EPA to recommend that Indiana use the

deterministic test for the required ozone

attainment demonstration. The

commenter also urges both EPA and

IDEM to provide for adequate, local

public information and opportunity for

comment on the mid-course review now

promised for the end of 2004.

Response: As noted in the August 3,

2001 NPR (66 FR 40802), Indiana has

demonstrated attainment of the 1-hour

ozone standard using the UAM. Indiana

used UAM data and a statistical

approach, as defined in EPA’s June 1996

Guidance on Use of Modeled Results to

Demonstrate Attainment of the Ozone

NAAQS (EPA–454/B–95–007), to

demonstrate attainment of the 1-hour

ozone standard in the Chicago-GaryLake County nonattainment area by

November 15, 2007.

The commenter is objecting to the

State demonstrating attainment of the 1-

hour ozone standard via procedures

differing from the deterministic test as

discussed in the June 1996 guidance.

However, as discussed in more detail in

the June 1996 guidance and elsewhere

in this final rule, the deterministic test

is not the only attainment

demonstration test supported by the

attainment demonstration requirements

of the CAA. The CAA is not prescriptive

as to the specific nature of the

attainment demonstration, other than

that the use of a photochemical

dispersion model, such as UAM, is

required for serious and above ozone

nonattainment areas. The CAA does not

prevent the consideration of additional

data to support the attainment

demonstration. In addition, the EPA has

found that the simple use of the

photochemical dispersion model

through only the deterministic test may

not be appropriate for some areas.

The modeled attainment test

compares model predicted 1-hour daily

maximum ozone concentrations in all

grid cells for the attainment year to the

level of the NAAQS. The results may be

interpreted through either of two

modeled attainment or exceedance tests:

a deterministic test or a statistical test.

Under the deterministic test, a predicted

concentration above 0.124 parts per

million (ppm) ozone indicates that the

area is expected to exceed the standard

in the attainment year and a prediction

at or below 0.124 ppm indicates that the

area is expected to not exceed the

standard. Under the statistical test,

attainment is demonstrated when all

predicted (i.e., modeled) 1-hour ozone

concentrations inside the modeling

domain are at, or below, an acceptable

upper limit above the NAAQS permitted

under certain conditions (depending on

the severity of the episode modeled).1

In 1996, EPA issued guidance 2 to

update the 1991 guidance referenced in

40 CFR 50 App. W, to make the

modeled attainment test more closely

reflect the form of the NAAQS (i.e., the

statistical test described above), to

consider the area’s ozone design value

and the meteorological conditions

accompanying observed exceedances,

and to allow consideration of other

evidence to address uncertainties in the

modeling databases and application.

When the modeling does not

conclusively demonstrate attainment,

EPA has concluded that additional

analyses may be presented to help

determine whether the area will attain

the standard. As with other predictive

tools, there are inherent uncertainties

associated with air quality modeling

and its results. The inherent

imprecision of the model means that it

may be inappropriate to view the

specific numerical result of the model as

the only determinant of whether the SIP

controls are likely to lead to attainment.

The EPA’s guidance recognizes these

limitations, and provides a means for

considering other evidence to help

assess whether attainment of the

NAAQS is likely to be achieved. The

process by which this is done is called

a weight of evidence (WOE)

determination. Under a WOE

determination, the state can rely on, and

EPA will consider in addition to the

results of the modeled attainment test,

other factors such as other modeled

output (e.g., changes in the predicted

frequency and pervasiveness of 1-hour

ozone NAAQS exceedances, and

predicted change in the ozone design

value); actual observed air quality

trends (i.e. analyses of monitored air

quality data); estimated emissions

trends; and the responsiveness of the

model predictions to further controls.

EPA has applied WOE determinations

to all of the current demonstrations

under proposal, although except for the

Chicago-Gary-Lake County and

Milwaukee attainment demonstrations,

the modeling results submitted do not

pass the recommended ‘‘modeled

attainment test.’’ These determinations

were made based on EPA’s best

understanding of the problem and relied

on a qualitative assessment as well as

quantitative assessments of the available

information.

With regard to the commitment for a

Mid-Course Review and public input on

the MCR, EPA intends to issue guidance

to the States on the MCR. We appreciate

the commenter’s concern that the public

remain informed including the

opportunity for comment on the midcourse review. We will consider your

request as the guidance to the States is

drafted and finalized.

Comment: A commenter agrees with

EPA’s decision to revisit the existing

NOX waiver. That waiver was

strenuously objected to by a number of

local and regional organizations. The

commenter urges EPA to remove the

waiver for Reasonably Available Control

Technology (RACT), New Source

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56947

Review (NSR), transportation and

general conformity and Inspection and

Maintenance (I/M) for Lake and Porter

Counties.

Response: EPA has carefully

reconsidered the basis for the NOX

waiver for the Chicago-Gary-Lake

County area both in the notice which

proposed approval of the attainment

demonstration and also in this notice. It

should be noted that the August 3, 2001

proposed rule (66 FR 40802) proposed

to change the basis for the continuance

of the NOX waiver from an ozone

benefit/dis-benefit basis to an avoidance

of excess NOX emissions reduction basis

under section 182(f)(2) of the CAA.

Since the State has demonstrated

attainment of the 1-hour ozone standard

without the use of all possible NOX

emission controls, the State, under

section 182(f)(2) of the CAA qualifies for

a NOX emissions control waiver for

those NOX controls not relied on in the

ozone attainment demonstration. Since

the State does not rely on NOX emission

reductions from NOX RACT, NOX NSR,

and certain mobile source emission

controls under I/M and conformity in

the ozone attainment demonstration for

the Chicago-Gary-Lake County ozone

nonattainment area, the area qualifies

for a NOX waiver of these NOX emission

controls. The determination that certain

control measures are ‘‘excess’’ is based

on the attainment demonstration and is

independent of the ozone impacts of the

control measures subject to the NOX

waiver. Therefore, even if ozone control

benefits are achievable from some of

these NOX controls, this is not a basis

for denying or withdrawing the NOX

waiver for these emission control

measures.

B. Comments Received on the December

16, 1999, Proposed Conditional

Approval

Comment: We received a number of

comments about the process and

substance of EPA’s review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes.

Response: EPA’s adequacy process for

these SIPs has been completed, and we

have found the motor vehicle emissions

budgets in all of these SIPs to be

adequate. We have already responded to

any comments related to adequacy

when we issued our adequacy findings,

and therefore we are not listing the

individual comments or responding to

them here. Our findings of adequacy

and responses to comments can be

accessed at www.epa.gov/otaq/traq

(once there, click on the ‘‘conformity’’

button).

Comment: A commenter notes that

EPA has been working toward

promulgation of a revised 8-hour ozone

NAAQS because the Administrator

deemed attaining the 1-hour ozone

NAAQS is not adequate to protect

public health. Therefore, EPA must

ensure that measures be implemented

now that will be sufficient to meet the

1-hour standard and that make as much

progress toward implementing the 8-

hour ozone standard as the

requirements of the CAA and

implementing regulations allow.

Response: Although the 8-hour ozone

standard has been adopted by the EPA,

implementation of this standard has

been delayed while certain aspects of

the standard remain before the United

States Circuit Court of Appeals. The

States and the EPA have yet to define

the 8-hour ozone nonattainment areas

and the EPA has yet to issue guidance

and requirements for the

implementation of the 8-hour ozone

standard. In the meantime, it is assumed

by the EPA that emission controls

implemented to attain the 1-hour ozone

standard will be beneficial towards

attainment of the 8-hour ozone standard

as well. This is particularly true

regarding the implementation of NOX

emission controls resulting from EPA’s

NOX SIP call.

Comment: A commenter asks that

EPA require full compliance with

regulatory requirements now in place

that govern the development of

attainment strategies, and rigorous

implementation of statutory

requirements for RACT and RACM.

Response: As noted in responses to

other comments in this final rule and in

the August 3, 2001 proposed rule, the

Indiana SIP meets the CAA

requirements for the implementation of

RACM. In addition, it is noted that the

State of Indiana has implemented all

required RACT controls for VOC sources

in the ozone nonattainment areas in

Indiana. As noted elsewhere in this final

rule and in the August 3, 2001 proposed

rule, the Chicago-Gary-Lake County

nonattaiment area is currently covered

by a waiver from NOX RACT controls.

Section 172(c)(1) of the CAA requires

SIPs to contain RACM and provides for

areas to attain as expeditiously as

practicable. EPA has previously

provided guidance interpreting the

requirements of section 172(c)(1). See 57

FR 13498, 13560. In that guidance, EPA

indicated its interpretation that

potentially available measures that

would not advance the attainment date

for an area would not be considered to

be RACM. EPA also indicated in that

guidance that States should consider all

potentially available emission control

measures to determine whether they are

potentially available for implementation

in an area and whether they would

advance the attainment date. Further,

States should indicate in their SIPs

whether emission control measures

considered were reasonably available or

not, and, if measures are reasonably

available, they must be adopted by the

States as RACM. Finally, EPA indicated

that States could reject emission control

measures as not being RACM because

they would cause substantial

widespread and long-term adverse

impacts, or would be economically or

technologically infeasible. The EPA also

issued a recent memorandum reconfirming the principles in the earlier

guidance. The newer memorandum is

titled, ‘‘ Guidance on the Reasonably

Available Control Measures (RACM)

Requirement and Attainment

Demonstration Submissions for Ozone

Nonattainment Areas,’’ from John S.

Seitz, Director, Office of Air Quality

Planning and Standards. November 30,

1999. Web site Planning and Standards.

November 30, 1999. Web site: http://

www.epa.gov/ttn/oarpg/tlpgm.html.

As noted in the August 3, 2001

proposed rule, the State’s SIP has

addressed the implementation of

RACM, and we have determined that

the SIP adequately meets the RACM

requirements of the CAA. We addressed

the implementation of emission control

measures in the Lake and Porter County

area for both mobile and stationary

sources. We determined that the State

could not significantly advance the 1-

hour ozone standard attainment date

through the implementation of emission

controls not already adopted by the

State. In addition, as we noted in the

August 3, 2001 proposed rule, although

we encourage areas to implement

available RACM as potentially costeffective methods to achieve emission

reductions in the short term, we do not

believe that section 172(c)(1) of the CAA

requires implementation of potential

RACM measures that either needlessly

require costly implementation efforts or

produce relatively small emissions

reductions that will not be sufficient to

allow an area to achieve attainment in

advance of full implementation of all

other required measures.

In addition to emission control

measures already implemented locally,

Indiana relies in large part on emission

reductions from outside of the area

resulting from EPA’s NOX SIP call rule

or section 126 NOX rule (65 FR 2674,

January 18, 2000) to reach attainment of

the ozone standard. In the NOX SIP call

(63 FR 57356), we concluded that NOX

emission reductions from various

upwind States were necessary to

56948 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

3The August 12, 1996 version of ‘‘Appendix W

to Part 51—Guideline on Air Quality Models’’ was

the rule in effect for these attainment

demonstrations. EPA is proposing updates to this

rule, that will not take effect until the rulemaking

process for them is complete.

4 Guidance on the Use Of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

5 Ibid.

provide for timely attainment of the 1-

hour ozone standard in nonattainment

areas in various downwind States,

including Indiana on both counts. The

NOX SIP call established requirements

for control of sources of significant

emissions in the relevant upwind States.

These NOX emission reductions are not

expected to be fully implemented until

May 2004.

The ozone attainment demonstration

for Indiana indicates that the ozone

reduction benefit expected to be

achieved from the regional NOX

emission reductions is substantial. We

have seen no evidence for similar ozone

benefits resulting from Indiana-specific

emission controls not already adopted

by the State that would significantly

advance the attainment date for the

Chicago-Gary-Lake County ozone

nonattainment area earlier than 2007.

Therefore, EPA concludes, based on the

available documentation, that the

emission reductions from additional

emission control measures will not

advance attainment, and, thus, none of

the possible additional emission control

measures can be considered to be RACM

for the purposes of section 172(c)(1) of

the CCA.

Given the above, it is concluded that

Indiana has met the requirements for

RACT and RACM as requested by the

commenter.

Comment: The commenter states that

none of the air quality plans for severe

ozone nonattainment areas demonstrate

attainment in the manner required by

section 182(c)(2)(A) of the CAA. Each

State’s photochemical grid modeling

clearly predicts continued

nonattainment of the 1-hour ozone

standard, with predicted ozone peak

concentrations well above the NAAQS.

The Weight-Of-Evidence (WOE)

approach does not satisfy the CAA’s

mandate to assure attainment of the

ozone standard by the deadline, nor

does it comply with the requirement of

a modeled demonstration of attainment.

EPA may not lawfully approve SIPs

based on modeling that has been

expressly prohibited by the rule.

Note that a number of commenters

made related comments on the ozone

attainment demonstrations (including

those from states other than Indiana)

reviewed in the December 16, 1999

proposed rules. These related comments

are also addressed here.

Response: Under section 182(c)(2) and

(d) of the CAA, serious and severe ozone

nonattainment areas were required to

submit by November 15, 1994,

demonstrations of how they would

attain the 1-hour ozone standard.

Section 182(c)(2)(A) of the CAA

provides that ‘‘[t]his attainment

demonstration must be based on

photochemical grid modeling or any

other analytical method determined by

the Administrator, in the

Administrator’s discretion, to be at least

as effective.’’ As described in more

detail below, the EPA allows states to

supplement their photochemical

modeling results, with additional

evidence designed to account for

uncertainties in the photochemical

modeling, to demonstrate attainment.

This approach is consistent with the

requirement of section 182(c)(2)(A) of

the CAA that the attainment

demonstration ‘‘be based on

photochemical grid modeling,’’ because

the modeling results constitute the

principal component of EPA’s analysis,

with supplemental information

designed to account for uncertainties in

the model. This interpretation and

application of the photochemical

modeling requirement of section

182(c)(2)(A) finds further justification in

the broad deference Congress granted

EPA to develop appropriate methods for

determining attainment, as indicated in

the last phrase of section 182(c)(2)(A).

The flexibility granted to EPA under

section 182(c)(2)(A) of the CAA is

reflected in the regulations EPA

promulgated for modeled attainment

demonstrations. These regulations

provide, ‘‘The adequacy of a control

strategy shall be demonstrated by means

of applicable air quality models, data

bases, and other requirements specified

in [40 CFR part 51 Appendix W]

(Guideline on Air Quality Models).’’ 3 40

CFR 51.112(a)(1). However, the

regulations further provide, ‘‘Where an

air quality model specified in appendix

W * * * is inappropriate, the model

may be modified or another model

substituted [with approval by EPA, and

after] notice and opportunity for public

comment * * *.’’ Appendix W, in turn,

provides that, ‘‘The Urban Airshed

Model (UAM) is recommended for

photochemical or reactive pollutant

modeling applications involving entire

urban areas,’’ but further refers to EPA’s

modeling guidance for data

requirements and procedures for

operating the model. 40 CFR 51 App. W

section 6.2.1.a. The modeling guidance

discusses the data requirements and

operating procedures, as well as

interpretation of model results as they

relate to the attainment demonstration.

This provision references guidance

published in 1991, but EPA envisioned

the guidance would change as we

gained experience with model

applications, which is why the guidance

is referenced, but does not appear, in

Appendix W. With updates in 1996 and

1999, the evolution of EPA’s guidance

has led us to use both the

photochemical grid model, and

additional analytical methods approved

by EPA.

The modeled attainment test

compares model predicted 1-hour daily

maximum ozone concentrations in all

grid cells for the attainment year to the

level of the NAAQS. The results may be

interpreted through either of two

modeled attainment or exceedance tests:

the deterministic test or the statistical

test. Under the deterministic test, a

predicted (attainment year, 2007 for the

Chicago-Gary-Lake County ozone

nonattainment area) 1-hour ozone

concentration above 0.124 parts per

million (ppm) indicates that the area is

expected to exceed the standard in the

attainment year and a prediction at or

below 0.124 ppm indicates that the area

is expected to not exceed the standard.

Under the statistical test, attainment is

demonstrated when all predicted (i.e.,

modeled) 1-hour ozone concentrations

inside the modeling domain are at, or

below, an acceptable upper limit above

the NAAQS permitted under certain

conditions (depending on the severity of

the episode modeled).4

In 1996, EPA issued guidance 5 to

update the 1991 guidance referenced in

40 CFR 50 App. W, to make the

modeled attainment test more closely

reflect the form of the NAAQS (i.e., the

statistical test described above), to

consider the area’s ozone design value

and the meteorological conditions

accompanying observed exceedances,

and to allow consideration of other

evidence to address uncertainties in the

modeling databases and application.

When the modeling does not

conclusively demonstrate attainment,

EPA has concluded that additional

analyses may be presented to help

determine whether the area will attain

the standard. As with other predictive

tools, there are inherent uncertainties

associated with air quality modeling

and its results. The inherent

imprecision of the model means that it

may be inappropriate to view the

specific numerical result of the model as

the only determinant of whether the SIP

controls are likely to lead to attainment.

The EPA’s guidance recognizes these

limitations, and provides a means for

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56949

6 ‘‘Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled.’’ U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. November 1999.

Web site: http://www.epa.gov/ttn/scram.

considering other evidence to help

assess whether attainment of the

NAAQS is likely to be achieved. The

process by which this is done is called

a Weight-Of-Evidence (WOE)

determination. Under a WOE

determination, the state can rely on, and

EPA will consider in addition to the

results of the modeled attainment test,

other factors such as other modeled

output (e.g., changes in the predicted

frequency and pervasiveness of 1-hour

ozone NAAQS exceedances, and

predicted change in the ozone design

value); actual observed air quality

trends (i.e., analyses of monitored air

quality data); estimated emissions

trends; and the responsiveness of the

model predictions to further emission

controls.

In 1999, EPA issued additional

guidance 6 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an additional component of

the WOE determination, which requires,

under certain circumstances, additional

emission reductions that are or will be

approved into the SIP, but that were not

included in the modeling analysis, that

will further reduce the modeled ozone

design value. An area is considered to

monitor attainment if each monitor site

has air quality observed ozone design

values (4th highest daily maximum

ozone using the three most recent

consecutive years of data) at or below

the level of the standard. Therefore, it is

appropriate for EPA, when making a

determination that a control strategy

will provide for attainment, to

determine whether or not the model

predicted future design value is

expected to be at or below the level of

the standard. Since the form of the 1-

hour NAAQS allows exceedances, it did

not seem appropriate for EPA to require

the test for attainment to be ‘‘no

exceedances’’ in the future model

predictions. The method outlined in

EPA’s 1999 guidance uses the highest

measured design value across all sites in

the nonattainment area for each of three

years. These three ‘‘design values’’

represent the air quality observed

during the time period used to predict

ozone for the base emissions. This is

appropriate because the model predicts

the change in ozone from the base

period to the future attainment date.

The three yearly design values (highest

across the area) are averaged to account

for annual fluctuations in meteorology.

The result is an estimate of an area’s

base year design value. The base year

design value is multiplied by a ratio of

the peak model predicted ozone

concentrations in the attainment year

(i.e., average of daily maximum

concentrations from all days modeled)

to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily maximum

concentrations from all days modeled).

The result is an attainment year design

value based on the relative change in

peak model predicted ozone

concentrations from the base year to the

attainment year. Modeling results also

show that emission control strategies

designed to reduce areas of peak ozone

concentrations generally result in

similar ozone reductions in all core

areas of the modeling domain, thereby

providing some assurance of attainment

at all monitors.

In the event that the attainment year

design value is above the standard, the

1999 guidance provides a method for

identifying additional emission

reductions, not modeled, which at a

minimum provide an estimated

attainment year design value at the level

of the standard. This step uses a locally

derived factor which assumes a linear

relationship between ozone and the

precursors.

A commenter on our December 1999

proposed ozone rules criticized the 1999

guidance as flawed on grounds that it

allows the averaging of the three highest

air quality sites across a region, whereas

EPA’s 1991 and 1996 modeling

guidance requires that attainment be

demonstrated at each site. This has the

effect of allowing lower air quality

concentrations to be averaged against

higher concentrations thus reducing the

total emission reduction needed to

attain at the higher site. The commenter

does not appear to have described the

guidance accurately. The guidance does

not recommend averaging across a

region or spatial averaging of observed

data. The guidance does recommend

determination of the highest site in the

region for each of the three-year periods,

determined by the base year modeled.

For example, if the base year is 1990, it

is the amount of emissions in 1990 that

must be adjusted or evaluated (by

accounting for growth and controls) to

determine whether attainment results.

These 1990 emissions contributed to

three ozone design value periods (1988–

90, 1989–91 and 1990–92). Under the

approach of the guidance document,

EPA determined the design value for

each of those three-year periods, and

then averaged those three design values,

to determine the area’s base ozone

design value. This approach is

appropriate because, as just noted, the

1990 emissions contributed to each of

those periods, and there is no reason to

believe the 1990 (episodic) emissions

resulted in the highest or lowest of the

three design values. Averaging the three

years is beneficial for another reason: It

allows consideration of a broader range

of meteorological conditions—those that

occurred throughout the 1988–1992

period, rather than the meteorology that

occurs in one particular year or even

one particular ozone episode within that

year. Further more, EPA relied on threeyear averaging only for purposes of

determining one component, i.e.—the

small amount of additional emission

reductions not modeled—of the WOE

determination. The WOE determination,

in turn, is intended to be part of a

qualitative assessment of whether

additional factors (including the

additional emissions reductions not

modeled), taken as a whole, indicate

that the area is more likely than not to

attain.

A commenter on our December 1999

proposed ozone rules criticized the

component of this WOE factor that

estimates ambient improvement because

it does not incorporate complete

modeling of the additional emissions

reductions. However, the regulations do

not mandate, nor does EPA guidance

suggest, that States must model all

control measures being implemented.

Moreover, a component of this

technique—the estimation of the future

ozone design value—should be

considered a model predicted estimate.

Therefore, results from this technique

are an extension of ‘‘photochemical

grid’’ modeling and are consistent with

Section 182(c)(2)(A). Also, a commenter

believes EPA has not provided sufficient

opportunity to evaluate the calculations

used to estimate additional emission

reductions. EPA provided a full 60-day

period for comment on all aspects of the

proposed rules. EPA has received

several comments on the technical

aspects of the approach and the results

of its application, as discussed above

and in the responses to the individual

SIPs.

A commenter states that application

of the method of attainment analysis in

the December 16, 1999 guidance will

yield a lower control estimate than if we

relied entirely on reducing maximum

predictions in every grid cell to less

than or equal to 124 ppb on every

modeled day. However, the

commenter’s approach may

overestimate needed emission controls

because the form of the standard allows

56950 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

1Not applicable to the Chicago area ozone

attainment demonstration addressed in this final

rule, but applicable for other ozone nonattainment

areas for which EPA is also publishing final rules.

8The rulemaking referred to here is not a

proposed rule covering the ozone attainment

demonstration for the Chicago-Gary-Lake County

nonattainment area. Rather, the rulemaking referred

to here is a proposed rule for an area found to have

a shortfall in a state’s ozone attainment

demonstration. This type of proposed rule generally

applied to one of the Northeastern States. This

paragraph of the response is not applicable to the

Indiana ozone attainment demonstration.

up to 3 exceedances in 3 years at every

monitoring site, and, therefore, in every

grid cell. If the model over-predicts

observed concentrations, predicted

controls may be further overestimated.

EPA has considered other evidence, as

described above through the weight of

evidence determination.

When reviewing a SIP, the EPA must

make a determination that the control

measures adopted are reasonably likely

to lead to attainment. Reliance on the

WOE factors allows EPA to make this

determination based on a greater body

of information presented by the States

and available to EPA. EPA’s decision

was further strengthened by each State’s

commitment to check progress towards

attainment in a mid-course review and

to adopt additional measures, if the

anticipated progress is not being made.

A commenter further criticized EPA’s

technique for estimating the ambient

impact of additional emissions

reductions not modeled on grounds that

EPA employed a rollback modeling

technique that, according to the

commenter, is precluded under EPA

regulations. The commenter explained

that 40 CFR 51 App. W section 6.2.1.e.

provides, ‘‘Proportional (rollback/

forward) modeling is not an acceptable

procedure for evaluating ozone control

strategies.’’ Section 14.0 of appendix W

defines ‘‘rollback’’ as ‘‘a simple model

that assumes that if emissions from each

source affecting a given receptor are

decreased by the same percentage,

ambient air quality concentrations

decrease proportionately.’’ Under this

approach if 20 percent improvement in

ozone is needed for the area to reach

attainment, it is assumed a 20 percent

reduction in VOC emissions would be

required. There was no approach for

identifying NOX reductions. The

‘‘proportional rollback’’ approach is

based on a purely empirically/

mathematically derived relationship.

EPA did not rely on this approach in its

evaluation of the attainment

demonstrations. The prohibition in

Appendix W applies to the use of a

rollback method which is empirically/

mathematically derived and

independent of model estimates or

observed air quality and emissions

changes as the sole method for

evaluating control strategies. For the

demonstrations under proposal, EPA

used a locally derived (as determined by

the model and/or observed changes in

air quality) ratio of change in emissions

to change in ozone to estimate

additional emission reductions to

achieve an additional increment of

ambient improvement in ozone. For

example, if monitoring or modeling

results indicate that ozone was reduced

by 25 ppb during a particular period,

and that VOC and NOX emissions fell by

20 tons per day and 10 tons per day

respectively during that period, EPA

developed a ratio of ozone improvement

related to reductions in VOC and NOX.

This formula assumes a linear

relationship between the precursors and

ozone for a small amount of ozone

improvement, but it is not a

‘‘proportional rollback’’ technique.

Further, EPA uses these locally derived

adjustment factors as a component to

estimate the extent to which additional

emissions reductions 7—not the core

control strategies—would reduce ozone

levels and thereby strengthen the weight

of evidence test. EPA uses the UAM to

evaluate the core control strategies. This

limited use of adjustment factors is

more technically sound than the

unacceptable use of proportional

rollback to determine the ambient

impact of the entire set of emissions

reductions required under the

attainment SIP. The limited use of

adjustment factors is acceptable for

practical reasons: It obviates the need to

expend more time and resources to

perform additional modeling. In

addition, the adjustment factor is a

locally derived relationship between

ozone and its precursors based on air

quality observations and/or modeling

which is more consistent with

recommendations referenced to in

Appendix W and does not assume a

direct proportional relationship between

ozone and its precursors. In addition,

the requirement that areas perform a

mid-course review (a check of progress

toward attainment) provides a margin of

safety.

A commenter expressed concerns that

EPA used a modeling technique

(proportional rollback) that was

expressly prohibited by 40 CFR part 51

Appendix W without expressly

proposing to do so in a notice of

proposed rulemaking. However, the

commenter is mistaken. As explained

above, EPA did not use or rely on a

proportional rollback technique in the

relevant rulemaking 8 but used UAM to

evaluate the core control strategies and

then applied its WOE guidance.

Therefore, because EPA did not use an

‘‘alternative model’’ to UAM, it did not

trigger an obligation to modify

Appendix W. Furthermore, EPA did

propose to use the November 1999

guidance, ‘‘Guidance for Improving

Weight of Evidence Through

Identification of Additional Emission

Reductions, Not Modeled,’’ in the

December 16, 1999 NPR and has

responded to all comments received on

that guidance elsewhere in this final

rule.

A commenter also expressed concern

that EPA applied unacceptably broad

discretion in fashioning and applying

the WOE determinations. For all of the

attainment submittals proposed for

approval in December 1999 concerning

serious and severe ozone nonattainment

areas, EPA first reviewed the UAM

results. In all cases, the UAM results did

not pass the deterministic test. In two

cases—Milwaukee and Chicago—the

UAM results passed the statistical test;

in the rest of the cases, the UAM results

failed the statistical test. The UAM has

inherent limitations that, in EPA’s view,

were manifest in all these cases. These

limitations include: Only selected time

periods were modeled, not the entire

three-year period used as the definitive

means for determining an area’s

attainment status. Also, there are

inherent uncertainties in the model

formulation and model inputs such as

hourly emission estimates, emissions

growth projections, biogenic emission

estimates, and derived wind speeds and

directions. As a result, for all areas, even

Milwaukee and Chicago, EPA examined

additional analyses to indicate whether

additional SIP controls would yield

meaningful reductions in ozone values.

These analyses did not point to the need

for additional emission reductions for

Springfield, Greater Connecticut,

Metropolitan Washington DC, Chicago

and Milwaukee, but did point to the

need for additional reductions, in

varying amounts, in the other areas. As

a result, the other areas submitted

control requirements to provide the

indicated level of emissions reductions.

EPA applied the same methodology in

these areas, but because of differences in

the application of the model to the

circumstances of each individual area,

the results differed on a case-by-case

basis.

As another WOE factor, for areas

within the NOX SIP Call domain, results

from the EPA regional modeling for

NOX controls as well as the Tier2/Low

Sulfur program were considered. Also,

for all of the areas, EPA considered

recent changes in air quality and

emissions. For some areas, this was

helpful because there were emission

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56951

9 ‘‘Credit for the 15 Percent Rate-of-Progress Plans

for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rules,’’

March 22, 1995, from John S. Seitz, Director, Office

of Air Quality Planning and Standards to Air

Division Directors, Regions I–X. 10 ‘‘Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing Rule,’’ November 27, 1994,

John S. Seitz, Director OAQPS, to Air Division

Directors, Regions I–X.

reductions in the most recent years that

could be related to observed changes in

air quality, while for other areas there

appeared to be little change in either air

quality or emissions. For areas in which

air quality trends, associated with

changes in emissions levels, could be

discerned, these observed changes were

used to help decide whether or not the

emission controls in the plan would

provide progress towards attainment.

A commenter also complained that

EPA has applied the WOE

determinations to adjust modeling

results only when those results indicate

nonattainment, and not when they

indicate attainment. First, we disagree

with the premise of this comment: EPA

does not apply the WOE factors to

adjust model results. EPA applies the

WOE factors as additional analysis to

compensate for uncertainty in the air

quality modeling. Second, EPA has

applied WOE determinations to all of

the attainment demonstrations proposed

for approval in December 1999.

Although for most of them, the air

quality modeling results by themselves

indicated nonattainment, for two

metropolitan areas—Chicago and

Milwaukee, including parts of the States

of Illinois, Indiana, and Wisconsin, the

air quality modeling did indicate

attainment on the basis of the statistical

test.

A commenter further criticized EPA’s

application of the WOE determination

on grounds that EPA ignores evidence

indicating that continued nonattainment

is likely, such as, according to the

commenter, monitoring data indicating

that ozone levels in many cities during

1999 continue to exceed the NAAQS by

margins as wide or wider than those

predicted by the UAM. EPA has

reviewed the evidence provided by the

commenter. The 1999 monitor values do

not constitute substantial evidence

indicating that the SIPs will not provide

for attainment. These values do not

reflect either the local or regional

control programs which are scheduled

for implementation in the next several

years. Once implemented, these controls

are expected to lower emissions and

thereby lower ozone values. Moreover,

there is little evidence to support the

statement that ozone levels in many

cities during 1999 continue to exceed

the NAAQS by margins as wide or

wider than those predicted by the UAM.

Since areas did not model 1999 ozone

levels using 1999 meteorology and 1999

emissions which reflect emission

reductions anticipated for control

measures that are or will be approved

into the SIP, there is no way to

determine how the UAM predictions for

1999 compare to the 1999 air quality.

Therefore, we can not determine

whether the monitor values exceed the

NAAQS by a wider margin than the

UAM predictions for 1999. In summary,

there is little evidence to support the

conclusion that high exceedances in

1999 will continue to occur after

adopted control measures are

implemented.

In addition, a commenter argued that

in applying the WOE determinations,

EPA ignored factors showing that the

SIPs under-predict future emissions,

and the commenter included as

examples certain mobile source

emissions sub-inventories. EPA did not

ignore possible under-prediction in

mobile emissions. EPA is presently

evaluating mobile source emissions data

as part of an effort to update the

computer model for estimating mobile

source emissions. EPA is considering

various changes to the model, and is not

prepared to conclude at this time that

the net effect of all these various

changes would be to increase or

decrease emissions estimates. For

attainment demonstration SIPs that rely

on the Tier 2/Sulfur program for

attainment or otherwise (i.e., reflect

these programs in their motor vehicle

emissions budgets), States have

committed to revise their motor vehicle

emissions budgets after the MOBILE6

model is released. EPA will work with

States on a case-by-case basis if the new

emission estimates raise issues about

the sufficiency of the attainment

demonstration. If analysis indicates

additional measures are needed, EPA

will take the appropriate action.

Comment: A commenter notes that

the SIP revisions addressed in the

December 16, 1999 proposed rules claim

emission reduction credits from

relatively recent national EPA

rulemakings for surface coatings and

consumer products. In most cases, the

emission reduction credit claimed is

based on EPA estimates of emission

reductions from proposed versions of

these rules. The final versions of these

rules, however, are weaker than the

proposed rules in a number of key

respects. Therefore, the emission credits

claimed for these national rules must be

recalculated to reflect only the actual

emission reductions that can be

expected under the EPA rules as finally

adopted.

Response: We respond to this

comment by addressing each of EPA’s

rules for surface coatings and consumer

products.

Architectural and Industrial

Maintenance (AIM) Coatings

EPA’s March 22, 1995 memorandum 9

allowed States to claim a 20 percent

reduction in VOC emissions from the

AIM coatings category in ROP and

attainment plans based on the

anticipated promulgation of a national

AIM coatings rule. In developing the

attainment and ROP SIPs for their

nonattainment areas, States relied on

this memorandum to estimate emission

reductions from the anticipated national

AIM rule. EPA promulgated the final

AIM rule in September 1998, codified at

40 CFR Part 59 Subpart D. In the

preamble to EPA’s final AIM coatings

regulation, EPA estimated that the

regulation will result in 20 percent

reduction of nationwide VOC emissions

from AIM coatings categories (63 FR

48855). The estimated VOC reductions

from the final AIM rule resulted in the

same level as those estimated in the

March 1995 EPA policy memorandum.

In accordance with EPA’s final

regulation, States have assumed a 20

percent reduction from AIM coatings

source categories in its attainment and

ROP plans. AIM coatings manufacturers

were required to be in compliance with

the final regulation within one year of

promulgation, except for certain

pesticide formulations which were

given an additional year to comply.

Thus all manufacturers were required to

comply, at the latest, by September

2000. EPA believes that all emission

reductions from the AIM coatings

national regulation will occur by 2002,

and, therefore, are creditable in the

attainment and ROP plans.

Autobody Refinish Coatings Rule

According to EPA’s guidance 10 and

proposed national rule, many States

have claimed a 37 percent VOC

emission reduction from this source

category based on a proposed rule.

However, EPA’s final rule, ‘‘National

Volatile Organic Compound Emission

Standards for Automobile Refinish

Coatings,’’ published on September 11,

1998 (63 FR 48806), did not regulate

lacquer topcoats and will result in a

smaller emission reduction of around 33

percent overall nationwide. The 37

percent emission reduction from EPA’s

56952 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

11 ‘‘Regulatory Schedule for Consumer and

Commercial Products under Section 183(e) of the

Clean Air Act’’, June 22, 1995, John S. Seitz,

Director OAQPS, to Air Division Directors, Regions

I—X.

proposed rule was an estimate of the

total nationwide emission reduction.

Since this number was an overall

average, it was not applicable to any

specific area. For example, in California

the reduction from the national rule is

zero because its rules are more stringent

than the national rule. In the proposed

rule, the estimated percentage reduction

for areas that were unregulated before

the national rule was about 40 percent.

If an area were unregulated before the

national rule, the 40 percent emission

reduction would be our estimate except

for one rule change made between

proposal and final: The exemption of

lacquer topcoats. As a result of that

exemption, the estimated percentage

reduction for previously unregulated

areas is about 36 percent. Therefore,

most areas will need to make up the

approximately 1 percent difference in

the reductions to be achieved from the

final program and those assumed based

on the proposed program. This emission

reduction shortfall, is not considered to

be the basis for disapproval of the

current ozone attainment demonstration

and post-1999 ROP plan, which contain

total emission reduction surpluses

exceeding this shortfall.

Consumer Products Rule

According to EPA’s guidance 11 and

proposed national rule, States have

claimed a 20-percent VOC emission

reduction from this source category. The

final rule, ‘‘National Volatile Organic

Compound Emission Standards for

Consumer Products,’’ (63 FR 48819),

published on September 11, 1998, will

result in a 20-percent emission

reduction. Therefore, the reductions

obtained by States from the final

national rule are consistent with the

emission reduction credit which was

claimed.

Comment: A commenter states that

the attainment and ROP demonstrations

in most States are flawed because they

assume a vehicle fleet mix that does not

accurately reflect the growing

proportion of sport utility vehicles

(SUVs) and gasoline trucks, which

pollute more than conventional cars.

EPA and the States have not followed a

consistent practice in updating ozone

modeling to account for changes in

vehicle fleets. The underestimation of

emissions from this can be significant.

Therefore, if the motor vehicle

emissions inventory has not been

updated to prepare the current SIP

submission, the SIP should be

disapproved.

Response: All of the SIPs on which

we are taking final action are based on

the most recent vehicle data available at

the time the SIP was submitted. Indiana

uses the default vehicle mix in the most

recent MOBILE model because local

data is not available. The SIPs use the

same vehicle fleet characteristics that

were used in the most recent periodic

inventory update. EPA requires the most

recent available data to be used, but we

do not require it to be updated on a

specific schedule. Therefore, different

SIPs base their fleet mix on different

years of data. Our guidance does not

suggest that SIPs should be disapproved

on this basis. Nevertheless, we do

expect that revisions to these SIPs that

are submitted using MOBILE6 (as

required in those cases where the SIP is

relying on emissions reductions from

the Tier 2 standards) will use updated

vehicle registration data appropriate for

use with MOBILE6, whether it is

updated local data or the updated

national default data that will be part of

MOBILE6.

Comment: A commenter (as well as

other commenters responding to EPA’s

December 16, 1999 ozone proposed

rules) notes that the CAA requires

nonattainment plans to provide for

implementation of all RACM as

expeditiously as practicable. The SIPs at

issue in the December 16, 1999

proposed rules do not meet these

requirements. The plans contain only a

limited set of emission control

measures, and fail to offer any

justification for the States’ failure to

adopt numerous available measures that

were specifically identified by EPA and

others. In addition, the SIPs contain no

demonstration or claim that the

emission control schedules are the

earliest practicable ones.

The commenter notes that the Phase

II NOX limits agreed to by Ozone

Transport Commission States are clearly

RACM, as they are widely in effect.

States that have adopted such measures

have not adopted enforceable NOX

RACT limits for all relevant facilities

within their jurisdiction. It is not

sufficient for States to assert that they

will adopt additional NOX emission

controls if needed. The CAA requires

each SIP to include all RACM now, and

to show that such measures have been

adopted in legally enforceable forms.

Response: Section 172(c)(1) of the

CAA requires SIPs to contain RACM as

necessary to provide for attainment as

expeditiously as practicable. EPA has

previously provided guidance

interpreting the RACM requirements of

172(c)(1). See 57 FR 13498, 13560. In

that guidance, EPA indicated its

interpretation that potentially available

measures that would not advance the

attainment date for an area would not be

considered RACM. EPA concluded that

a measure would not be reasonably

available if it would not advance

attainment. EPA also indicated in that

guidance that states should consider all

potentially available measures to

determine whether they were

reasonably available for implementation

in the area, and whether they would

advance the attainment date. Further,

states should indicate in their SIP

submittals whether measures

considered were reasonably available or

not, and if measures are reasonably

available they must be adopted as

RACM. Finally, EPA indicated that

states could reject potential RACM

measures either because they would not

advance the attainment date, would

cause substantial widespread and longterm adverse impacts, or for various

reasons related to local conditions, such

as economics or implementation

concerns. The EPA also issued a recent

memorandum on this topic, ‘‘Guidance

on the Reasonably Available Control

Measures (RACM) Requirement and

Attainment Demonstration Submissions

for Ozone Nonattainment Areas.’’ John

S. Seitz, Director, Office of Air Quality

Planning and Standards. November 30,

1999. Web site: http://www.epa.gov/ttn/

oarpg/t1pgm.html.

More specifically with respect to the

Chicago-Gary-Lake County

nonattainment area, as noted elsewhere

in this final rule and in the August 3,

2001 proposed rule, we have

determined that the Indiana SIP does

provide for the implementation of

RACM. The State has been granted a

waiver from adopting and implementing

NOX RACT requirements in the

nonattainment area. Therefore, these

emission controls are not RACM for this

area. Finally, the State has adopted and

is implementing regional NOX controls,

which have been demonstrated to

support the attainment of the ozone

standard.

Although EPA encourages areas to

implement available RACM measures as

potentially cost effective methods to

achieve emissions reductions in the

short term, EPA does not believe that

section 172(c)(1) requires

implementation of potential RACM

measures that either require costly

implementation efforts or produce

relatively small emissions reductions

that will not be sufficient to allow any

of the four areas to achieve attainment

in advance of full implementation of all

other required measures. Because we

believe that additional control measures

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56953

are not reasonably available for the Lake

and Porter Counties nonattainment area,

EPA believes that the attainment date

proposed for approval is as expeditious

as practicable.

Comment: A commenter states that

the air quality plans are deficient with

respect to Transportation Control

Measures (TCMs). The plans contain no

or few serious new measures to reduce

growth in vehicle travel. Most plans do

not seriously consider the possibility of

major expansion of transit service,

reduced or zero transit fares, pricing

strategies, etc. There is also substantial

evidence that significant air quality

benefits can be achieved by modifying

land development patterns to limit

urban sprawl and to facilitate transit

use. The commenter cites several

examples that would apply to this issue.

The States have generally not included

any of these types of measures in their

SIPs, and have have offered no

justification for the failure to do so.

Response: EPA has long advocated

that States consider the kinds of control

measures that the commenters have

suggested, and EPA has indeed

provided guidance on those measures.

See, e.g., http://www.epa.gov/otaq/

transp.htm. In order to demonstrate that

they will attain the 1-hour ozone

NAAQS as expeditiously as practicable,

some areas may need to consider and

adopt a number of measures-including

the kind that EPA itself evaluated in the

RACM analysis for the three serious

areas—that even collectively do not

result in many emission reductions.

Furthermore, EPA encourages areas to

implement technically available and

economically feasible measures to

achieve emissions reductions in the

short term-even if such measures do not

advance the attainment date-since such

measures will likely improve air quality.

Also, over time, emission control

measures that may not be RACM now

for an area may ultimately become

feasible for the same area due to

advances in control technology or more

cost-effective implementation

techniques. Thus, areas should continue

to assess the state of control technology

as they make progress toward

attainment and consider new control

technologies that may in fact result in

more expeditious improvement in air

quality.

The EPA’s approach toward TCMs as

RACM and the RACM requirement is

grounded in the language of the Clean

Air Act. Section 172(c)(1) states that a

SIP for a nonattainment area must meet

the following requirement, ‘‘In

general.—Such plan provisions shall

provide for the implementation of all

reasonably available control measures as

expeditiously as practicable (including

such reductions in emissions from

existing sources in the area as may be

obtained through the adoption, at a

minimum, of reasonably available

control technology) and shall provide

for attainment of the national primary

ambient air quality standards.’’

[Emphasis added.] The EPA interprets

this language as tying the RACM

requirement to the requirement for

attainment of the national primary

ambient air quality standard. The CAA

provides that the attainment date shall

be ‘‘as expeditiously as practicable but

no later than * * * the deadlines

specified in the CAA. EPA believes that

the use of the same terminology in

conjunction with the RACM

requirement serves the purpose of

specifying RACM as the way of

expediting attainment of the NAAQS in

advance of the deadline specified in the

CAA. As stated in the ‘‘General

Preamble’’ (57 FR 13498 at 13560, April

16, 1992), ‘‘The EPA interprets this

requirement to impose a duty on all

nonattainment areas to consider all

available control measures and to adopt

and implement such measures as are

reasonably available for implementation

in the area as components of the area’s

attainment demonstration.’’ [Emphasis

added.] In other words, because of the

construction of the RACM language in

the CAA, EPA does not view the RACM

requirement as separate from the

attainment demonstration requirement.

Therefore, EPA believes that the CAA

supports its interpretation that measures

may be determined to not be RACM if

they do not advance the attainment

date. In addition, EPA believes that it

would not be reasonable to require

implementation of measures that would

not in fact advance attainment. See 57

FR 13560.

The term ‘‘reasonably available

control measure’’ is not actually defined

in the definitions in the CAA. Therefore,

the EPA interpretation that potential

measures may be determined not to be

RACM if they require an intensive and

costly effort for numerous small area

sources is based on the common sense

meaning of the phrase, ‘‘reasonably

available.’’ A measure that is reasonably

available is one that is technologically

and economically feasible and that can

be readily implemented. Ready

implemention also includes

consideration of whether emissions

from small sources are relatively small

and whether the administrative burden,

to the States and regulated entities, of

controlling such sources was likely to be

considerable. As stated in the General

Preamble, EPA believes that States can

reject potential measures based on local

conditions including cost. 57 FR 13561.

As described in the August 3, 2001

proposal, Indiana has considered a wide

range of TCMs for the Lake and Porter

County area. Indiana has implemented a

number of TCMs using the Congestion

Mitigation and Air Quality Program

funds. These TCMs have not been

included for credit in the SIP. Indiana

has not included TCMs in the SIP,

however, Indiana has met the ROP

requirements and can meet the

attainment demonstration requirements

without taking credit for the generally

small pollutant reductions from the

implemented TCMs. The EPA has

concluded that Indiana has considered

and implemented all reasonably

available TCMs. Any measures that have

not been implemented and included

would provide only marginal air quality

improvements at significantly greater

expense or with significant

implementation barriers. All additional

TCMs will not advance the attainment

date because the TCMs will give only

marginal improvements or are

unreasonable because they are too

difficult to implement.

Comment: A commenter noted that a

1993 STAPPA report recommended

adoption of a California or South Coast

Air Quality Management District

(SCAQMD) controls or emission limits

for various source categories. The

commenter mentions further possible

control measures as well, and notes that

none of the States offered consideration

of these emission control measures

accompanied by reasoned explanations

for their rejection.

Response: The State has completed

the adoption of the ozone attainment

demonstration and its associated

emissions control strategy. We have

determined that the SIP, as currently

adopted by the State, addresses the

implementation of RACM. Section

172(c)(1) of the CAA requires SIPs to

contain RACM and provides for areas to

attain as expeditiously as practicable.

EPA has previously provided guidance

interpreting the requirements of section

172(c)(1). See 57 FR 13498, 13560. In

that guidance, EPA indicated its

interpretation that potentially available

measures that would not advance the

attainment date for an area would not be

considered to be RACM. EPA also

indicated in that guidance that States

should consider all potentially available

emission control measures to determine

whether they are potentially available

for implementation in an area and

whether they would advance the

attainment date. Further, States should

indicate in their SIPs whether emission

control measures considered were

56954 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

12To find regional solutions to the ozone

nonattainment problems in the Lake Michigan, the

States of Illinois, Indiana, Michigan, and Wisconsin

have organized and participated in LADCO, in

which all four States are represented in various

ozone modeling analyses and control strategy

reviews.

reasonably available or not, and, if

measures are reasonably available, they

must be adopted by the States as RACM.

Finally, EPA indicated that States could

reject emission control measures as not

being RACM because they would cause

substantial widespread and long-term

adverse impacts, or would be

economically or technologically

infeasible. This policy has been detailed

in other comments addressing RACM

and comments suggesting other

measures that could have been

considered for implementation.

As stated in the August 3, 2001

proposal, the State of Indiana, along

with the other Lake Michigan Air

Directors Consortium (LADCO) states,12

considered a wide range of measures for

their reduction potential, cost and ease

of implementation. The State of Indiana

has implemented measures which have

met the required ROP reductions and

have also been modeled to achieve

attainment of the 1-hour ozone standard

in the attainment demonstration, which

demonstrates that the Lake Michigan

area can achieve attainment of the 1-

hour ozone standard by the 2007

attainment date. Indiana relies in large

part on emission reductions from

outside of the Lake and Porter County

area resulting from EPA’s NOX SIP call

rule or section 126 NOX rule (65 FR

2674, January 18, 2000) to reach

attainment of the ozone standard. In the

NOX SIP call (63 FR 57356), we

concluded that NOX emission

reductions from various upwind States

were necessary to provide for timely

attainment of the 1-hour ozone standard

in nonattainment areas in various

downwind States, including Illinois on

both counts. The NOX SIP call

established requirements for control of

sources of significant emissions in the

relevant upwind States. These NOX

emission reductions are not expected to

be fully implemented until May 2004.

The ozone attainment demonstration for

Indiana indicates that the ozone

reduction benefit expected to be

achieved from the regional NOX

emission reductions is substantial. We

have seen no evidence for similar ozone

benefits resulting from Indiana-specific

emission controls not already adopted

by the State that would significantly

advance the attainment date for the

Chicago-Gary-Lake County ozone

nonattainment area earlier than 2007.

Therefore, EPA concludes, based on the

available documentation, that the

emission reductions from additional

emission control measures will not

advance attainment, and, thus none of

the possible additional emission control

measure can be considered to be RACM

for the purposes of section 172(c)(1) of

the CCA.

Comment: A commenter states that

MVEBs in the State plans are by

definition inadequate because the plans

do not demonstrate timely attainment or

contain the emission reductions

required for all RACM. The commenter

asserts that the EPA may not find as

adequate a MVEB that is derived from

a SIP that is inadequate for the purposes

for which it is submitted. The

commenter believes that none of the

MVEBs in the state plans addressed in

the December 16, 1999 proposed rules

are consistent with either the level of

emissions achieved by implementation

of all RACM, nor are they derived from

SIPs that provide for attainment.

Response: As noted above and in the

August 3, 2001 proposed rule, we have

determined that the State’s air quality

plan does reflect the adoption and

implementation of RACM. The plan also

contains MVEBs based on the plan’s

ozone attainment demonstration.

Therefore, we disagree with the

commenters assertion that we cannot

approve the plan’s MVEBs.

Comment: A commenter notes that

the CAA requires the SIPs to include a

program to provide for the enforcement

of the adopted control measures. Most

plans address this requirement,

however, none of the plans clearly set

out programs to provide for enforcement

of the various emission control

strategies relied on for emission

reduction credit.

Response: State enforcement program

elements are contained in SIP revisions

previously approved by EPA under

obligations for enforceable emission

limitations set out in section 110 of the

CAA. Once approved by the EPA, there

is no need for States to readopt and

resubmit their enforcement programs

with each and every SIP revision

generally required by other sections of

the CAA.

To the extent that the ozone

attainment demonstration and ROP plan

depends on specific State emission

control regulations, it must be noted

that the individual regulations have

undergone review by the EPA. The

regulations (rules) contain specific

enforcement mechanisms, such as

record keeping and reporting

requirements, which the EPA has

approved. These regulations also

provide for periodic State inspections

and reviews of the affected sources.

EPA’s reviews of these regulations

includes reviews of the enforceability of

the regulations. Rules that are not

enforceable are generally not approved

by the EPA. It is not necessary for the

State to submit separate enforcement

program plans for these regulations

other than those required under section

110 of the CAA, as noted above.

Comment: For States that need

additional VOC emission reductions,

this commenter recommends a process

to achieve these VOC emission

reductions, which involves the use of

HFC–152a (1,1 difluoroethane) as the

blowing agent in the manufacture of

polystyrene products, such as food trays

and egg cartons. HFC–152a could be

used instead of hydrocarbons as a

blowing agent. Use of HFC–152a, which

is classified as a non-VOC (VOC

exempt), would eliminate nationwide

the entire 25,000 tons per year of VOC

emissions from this industry.

Response: EPA met with the

commenter and discussed the

technology described in the comment.

Since the HFC–152a is VOC exempt, its

use would give a VOC reduction

compared to the use of VOCs, such a

pentane or butane, as blowing agents.

EPA, however, has not studied this

technology exhaustively. It is each

State’s prerogative to specify which

measures it will adopt in order to

achieve the additional VOC reductions

it needs. In evaluating the use of HFC–

152a, States may want to consider

claims that products made with this

blowing agent are comparable in quality

to products made with other blowing

agents. Also, the question of the over-all

long term environmental effect of

encouraging emissions of fluorine

compounds would be relevant to

consider. This is a technology which

States may want to consider, but

ultimately, the decision of whether to

require this particular technology to

achieve the necessary VOC emissions

reductions must be made by each

affected State. Finally, EPA notes that

under the Significant New Alternatives

Policy (SNAP) program, created under

CAA section 612, EPA has identified

acceptable foam blowing agents, many

of which are not VOCs (http://

www.epa.gov/ozone/title6/snap/).

Comment: A commenter agrees with

the concept of a mid-course review, but

recommends that it be done in 2004

rather than 2003. In 2003, anticipated

NOX controls will have only been in

effect for one ozone season. IDEM does

not believe that critical planning

decisions should be based on a single

year’s worth of data, given how weather

dependent ozone levels can be. USEPA

should revise the approval to provide

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56955

that the mid-course review is done in

2004, after a second year of ozone

season data is available.

Response: EPA understands the issue

of timing. However, the timing issue

involves balancing two critical factors.

On the one hand, for a MCR to be useful

in flagging the need to make changes to

an emissions control strategy in time to

affect attainment by the attainment date

(by November 15, 2007 for the Chicago

nonattainment area), it needs to be done

sufficiently in advance of the attainment

date. On the other hand, the MCR would

be able to discern more accurately

whether progress is being made if there

were sufficient emission reductions that

occurred in the time period between the

attainment demonstration modeling and

the time the MCR is performed. Thus, in

reviewing a state’s commitment

regarding the performance of a MCR for

any specific area, EPA must

appropriately accommodate these two

factors. In general, EPA believes that the

states should perform the MCR for

ozone nonattainment areas within the

NOX SIP Call region (which includes

Illinois) immediately following the first

ozone season (April 15 through October

15 for the Chicago nonattainment area)

during which sources are required to

comply with the state’s NOX SIP.

Because the Court extended the source

compliance deadline for the NOX SIP

Call until May 31, 2004, EPA generally

believes that for areas in the Eastern

United States, the most appropriate time

to perform the MCR would be following

the 2004 ozone season.

The December 16, 1999 NPRs for the

ten serious and severe ozone

nonattainment areas noted that, for

serious areas with an attainment date

extension to 2005 or earlier, it would be

impracticable to perform a mid-course

review per se. The NPRs asked the states

to commit instead to an early

assessment of whether attainment will

be achieved. See for example 64 FR

70319 at 70325 (NPR for the Western

Massachusetts ozone nonattainment

area). Thus, EPA did not base its

recommendation for the MCR in 2003

on the assumption that the 18 to 24

month period between completion of

the MCR and November 2005 would be

a sufficient period to ensure attainment

for serious nonattainment areas by 2005.

EPA, however, continues to believe that

for areas with an attainment date of

2007, the best balance in terms of timing

for the MCR is to ensure that the area

has several years between completion of

the MCR and its attainment date in

order for the state and EPA to assess the

need for the state (or perhaps upwind

states) to adopt and implement

additional controls. Due to the courtordered delay in the mandatory source

compliance date under the NOX SIP

Call, EPA believes that performing the

MCR by the end of 2004 best

accommodates the need for emission

controls to be implemented and the

need for EPA and states to have time to

take action in response to the MCR.

With regard to the timing of the MCR

for severe nonattainment areas versus

serious nonattainment areas, as noted

above, we conceptually agree with the

commenter. Performing the MCR after

the implementation of significant

emission controls and after assessing the

ozone data for the time period following

the implementation of these emission

controls would provide a more robust

MCR with fewer assumptions regarding

the impacts of the emission controls on

ozone levels. Nonetheless, to allow for

sufficient time to prepare and

implement supplemental emission

controls, if needed, prior to the ozone

standard attainment deadline, the MCR

must be conducted several years prior to

the attainment deadline. A sufficient

lead time of 2 to 3 years is believed to

be reasonable. Therefore, for a severe

ozone nonattainment area with a 2007

attainment deadline, the MCR should be

conducted no later than late 2004.

Indiana’s commitment to conduct the

MCR by the end of 2004 meets this

recommendation.

Please note from the August 3, 2001

proposed rule that we are proposing to

approve Indiana’s commitment to

conduct the MCR by the end of 2004,

after the implementation of the State’s

NOX emission control rules in

compliance with EPA’s NOX SIP Call.

This timing may not allow the State to

collect and quality assure ozone data

from the entire 2004 ozone season (the

State is allowed up to 90 days following

a calendar quarter to quality assure the

ozone data and submit the data to the

EPA) following ‘‘normal’’ quality

assurance schedules and to include all

of these data in the 2004 MCR. The State

may have to expedite the quality

assurance of the 2004 ozone data to

include as many of the 2004 ozone data

as possible in the MCR. On the other

hand, the State should be able to project

the impacts of the NOX emission control

rules using new or available ozone

modeling and the 2001–2003 ozone data

to draw some MCR conclusions.

Conducting a MCR by the end of 2004

will make it difficult for the State to

fully quality assure and incorporate the

ozone season ozone data for 2004 into

the MCR while still allowing time for

preparation of the MCR and public

review and input into this process.

Nonetheless, as noted above, the use of

current ozone data is only one metric

that may be taken into consideration in

this process. In addition, the State will

be able to take into consideration ozone

data through 2003 which should be

quality assured well before the

production of the MCR. The State may

also choose to pursue expedited quality

assurance of the 2004 data if the State

considers that to be an overwhelming

need for the purposes of preparing the

MCR, although such data use is not

required by the EPA.

We assume that the State will use all

available data in the preparation of the

MCR. To the extent 2004 data are

available, the state is encouraged to

make use of such data.

Comment: Given the current status of

the EPA’s NOX SIP Call rule, a

commenter recommends that the EPA

continue to allow Indiana and the other

LADCO states the flexibility to adjust

their plans for ozone and precursor

emission reductions from upwind areas.

Response: Since this comment was

submitted the ‘‘status’’ of the NOX SIP

Call has largly been resolved. On March

3, 2000, the U.S. Court of Appeals for

the District of Columbia Circuit (D.C.

Circuit) upheld EPA’s rules in most

respects. EPA and the States are moving

forward to implement those portions of

the rule that have been upheld. The

court remanded two issues to EPA, and

EPA has provided that the States did not

need to address in the SIPs due in

October 2000, the small portion of the

budget allocated with these remanded

issues. EPA intends to address these

remanded issues through notice and

comment rulemaking and, as

appropriate, establish a schedule for

states to submit SIPs addressing those

outstanding portions of the SIP Call

budgets.

Comment: A commenter believes that

it is unnecessary to force states to rely

upon the level of NOX reductions

anticipated from the NOX SIP Call to

achieve their attainment goals if more

recent modeling and monitoring data

show that sufficient reductions can be

attained by other less stringent means.

Response: EPA’s modeling to

determine the region-wide impacts of

the NOX SIP call clearly shows regional

transport of ozone and its precursors is

impacting nonattainment areas several

states away and NOX control benefits for

lowered downwind ozone

concentrations are not limited to nearby

nonattainment areas. Reductions in

ozone transport associated with the

collective application of the NOX

emission budgets in upwind States are

expected to provide substantial benefits

in downwind areas, 63 FR 57447. The

purpose of the NOX SIP Call was to

address long range ozone transport. EPA

56956 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

has not mandated that any State rely on

NOX emissions from the NOX SIP call as

part of their attainment demonstration.

However, a decision by a State not to

rely on these reductions for purposes of

attainment does not alleviate that State’s

burden to reduce NOX emissions to

benefit downwind nonattainment areas

in other States.

Comment: A commenter urges EPA

not to include language in the

rulemaking that will hinder the LADCO

states efforts to achieve their goals.

These states are continuing to evaluate

both the level and type of controls in

their respective states to solve the 1-

hour ozone problem and the longer

range ozone transport issue.

Response: This final approval

approves rules and modeling which the

State has chosen to address the 1-hour

ozone problem. This final rule, in no

way, hinders the LADCO States from

considering additional emission

controls to further lower local ozone

concentrations and to further reduce the

transport of ozone downwind.

Note that this comment was made

relative to our December 16, 1999

proposed rule. This proposed rule was

essentially replaced by the August 3,

2001 proposed rule, and, subsequent to

the publication of the December 16,

1999 proposed rule, Indiana has

completed its ozone nonattainment

demonstration for the Chicago-GaryLake County ozone nonattainment area

and has adopted the NOX emission

control rules required by EPA’s NOX SIP

Call to reduce the downwind transport

of ozone.

Comment: The commenter supports

the efforts of the EPA to help bring the

Chicago-Gary-Lake County

nonattainment area into compliance

with the 1-hour ozone NAAQS and

applauds the efforts of the LADCO states

to cooperatively address this regional

problem.

Response: The EPA appreciates the

support of the commenter and agrees

that LADCO has done an excellent job

of selecting and evaluating ozone

attainment strategies.

Comment: We received a number of

comments about the process and

substance of EPA’s review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes.

Response: We have completed our

review of the adequacy of these SIPs,

and we have found the motor vehicle

emissions budgets in all of these SIPs to

be adequate. We responded to all

comments related to adequacy when we

issued our adequacy findings, and

therefore we are not listing the

individual comments or responding to

them here. You may access our findings

of adequacy and responses to comments

at www.epa.gov/otaq/traq (once there,

click on the ‘‘conformity’’ button). EPA

regional contacts are identified on the

web site.

Comment: One commentor generally

supports a policy of requiring motor

vehicle emissions budgets to be

recalculated when revised MOBILE

models are released.

Response: The Phase II attainment

demonstrations that rely on Tier 2

emission reduction credit contain

commitments to revise the motor

vehicle emissions budgets after

MOBILE6 is released. As noted

elsewhere in this final rule, Indiana has

committed to revising the motor vehicle

emission budgets within two years after

EPA releases the MOBILE6 emission

factor model.

Comment: The revised budgets

calculated using MOBILE6 will likely be

submitted after EPA has approved the

MOBILE5 budgets. EPA’s policy is that

submitted SIPs may not replace

approved SIPs.

Response: This is the reason that EPA

proposed in the July 28, 2000,

Supplemental Notice of Proposed

Rulemaking (65 FR 46383) that the

approval of the MOBILE5 budgets for

conformity purposes would last only

until MOBILE6 budgets had been

submitted and found adequate. In this

way, the MOBILE6 budgets can apply

for conformity purposes as soon as they

are found adequate.

Comment: If a state submits

additional control measures that affect

the motor vehicle emissions budget, but

does not submit a revised motor vehicle

emissions budget, EPA should not

approve the attainment demonstration.

Response: EPA agrees. The motor

vehicle emissions budgets in the

Indiana ozone attainment demonstration

reflect the motor vehicle control

measures in the attainment

demonstration.

Comment: A commenter states that

EPA should make it clear that the motor

vehicle emissions budgets used for

conformity purposes will be determined

from the total motor vehicle emissions

reductions required in the SIP, even if

the SIP does not explicitly quantify a

revised motor vehicle emissions budget.

Response: EPA will not approve SIPs

without motor vehicle emissions

budgets that are explicitly quantified for

conformity purposes. The Indiana

attainment demonstration contains

explicitly quantified motor vehicle

emissions budgets.

Comment: If a state fails to follow

through on its commitment to submit

the revised motor vehicle emissions

budgets using MOBILE6, EPA could

find a failure to submit a portion of a

SIP, which would trigger a sanctions

clock under section 179.

Response: If a state fails to meet its

commitment, EPA could find a failure to

implement the SIP, which would start a

sanctions clock under section 179 of the

Act.

Comment: If the budgets recalculated

using MOBILE6 are larger than the

MOBILE5 budgets, then attainment

should be demonstrated again.

Response: As EPA proposed in its

December 16, 1999 notices, we will

work with states on a case-by-case basis

if the new emissions estimates raise

issues about the sufficiency of the

attainment demonstration.

Comment: If the MOBILE6 emission

budgets are smaller than the MOBILE5

emission budgets, the difference

between the budgets should not be

available for reallocation to other

sources, unless air quality data show

that the area is in attainment of the

standard and a revised attainment

demonstration is submitted that

demonstrates that the increased

emissions are consistent with

attainment and maintenance. Similarly,

the MOBILE5 budgets should not be

retained (when MOBILE6 is used for

conformity demonstrations) unless the

above conditions are met.

Response: EPA agrees that if

recalculation using MOBILE6 shows

lower motor vehicle emissions than

MOBILE5, then these motor vehicle

emission reductions cannot be

reallocated to other sources or assigned

to the motor vehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment

demonstration and shows that it will

still attain. In other words, the area must

assess how its original attainment

demonstration is impacted by using

MOBILE6 versus MOBILE5 before it

reallocates any apparent motor vehicle

emission reductions resulting from the

use of MOBILE6. Since Illinois has

committed to submit MOBILE6 budgets

within two years of the model’s release

and EPA’s approval of the MOBILE5

budgets is limited, the MOBILE5

budgets will not be retained once the

MOBILE6 budgets have been found

adequate.

Comment: We received a comment on

whether the grace period before

MOBILE6 is required in conformity

determinations will be consistent with

the schedules for revising SIP motor

vehicle emissions budgets (‘‘budgets’’)

within one or two years of MOBILE6’s

release.

Response: This comment is not

germane to this rulemaking, since the

Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations 56957

MOBILE6 grace period for conformity

determinations is not explicitly tied to

EPA’s SIP policy and approvals.

However, EPA understands that a longer

grace period would allow some areas to

better transition to new MOBILE6

budgets. EPA is considering the

maximum two year grace period

allowed by the conformity rule, and

EPA will address this in the future

when we release the final MOBILE6

emissions model and policy guidance.

Comment: One commenter asked EPA

to clarify in the final rule whether

MOBILE6 will be required for

conformity determinations once new

MOBILE6 budgets are submitted and

found adequate.

Response: This comment is not

germane to this rulemaking. However, it

is important to note that EPA intends to

clarify its policy for implementing

MOBILE6 in conformity determinations

when we release the final MOBILE6

model. EPA believes that MOBILE6

should be used in conformity

determinations once new MOBILE6

budgets are found adequate.

Comment: One commenter did not

prefer the additional option for a second

year before the state has to revise the

conformity budgets with MOBILE6,

since new conformity determinations

and new transportation projects could

be delayed in the second year.

Response: EPA proposed the

additional option to provide further

flexibility in managing MOBILE6 budget

revisions. The supplemental proposal

did not change the original option to

revise budgets within one year of

MOBILE6’s release. State and local

governments may continue to use the

one-year option, if desired, or submit a

new commitment consistent with the

alternative two-year option. EPA

expects state and local agencies to

consult on which option is appropriate,

and consider the impact on future

conformity determinations. Indiana has

committed to revise its budgets within

two years of MOBILE6’s release.

V. Final Rulemaking Action

In this rulemaking action, we are fully

approving Indiana’s 1-hour ozone

attainment demonstration SIP submitted

on December 21, 1999, as meeting the

requirements of sections 182(c)(2) and

(d) of the CAA. Specifically, we are

approving the following elements of the

SIP: 1) the modeled attainment

demonstration, 2) a post-1999 ozone

ROP plan with associated ROP motor

vehicle emissions budgets, 3) a revision

to the NOX waiver, 4) contingency

measure plans for both the ozone

attainment demonstration and the post1999 ROP plan, 5) the motor vehicle

emissions budgets for the 2007

attainment year, until such time that a

revised budget is submitted and found

adequate for conformity purposes as

called for by the state in its commitment

to recalculate and apply a revised

budget for conformity within two years

of the formal release of MOBILE6, 6) the

RACM analysis, 7) the commitment to

conduct a mid-course review of the

attainment status of the Lake Michigan

area, and 8) an agreed order between

U.S. Steel (currently USX Corporation)

and the IDEM signed by IDEM on March

22, 1996, which requires U.S. Steel to

establish a coke plant process water

treatment plant at its Gary Works.

Today’s action finalizes approval of

Indiana’s 1-hour ozone attainment

demonstration SIP revision.

VI. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

‘‘Actions Concerning Regulations That

Significantly Affect Energy Supply,

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

22, 2001). This action merely approves

state law as meeting federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. § 601 et seq.). Because this

rule approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Public Law 104–4). This rule also does

not have a substantial direct effect on

one or more Indian tribes, on the

relationship between the federal

Government and Indian tribes, or on the

distribution of power and

responsibilities between the federal

Government and Indian tribes, as

specified by Executive Order 13175 (65

FR 67249, November 9, 2000), nor will

it have substantial direct effects on the

states, on the relationship between the

national government and the states, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

The EPA believes that VCS are

inapplicable to this action. Today’s

action does not require the public to

perform activities conducive to the use

of VCS. As required by section 3 of

Executive Order 12988 (61 FR 4729,

February 7, 1996), in issuing this rule,

EPA has taken the necessary steps to

eliminate drafting errors and ambiguity,

minimize potential litigation, and

provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. § 3501 et seq.).

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. § 804(2).

This rule will be effective December

13, 2001.

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

56958 Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / Rules and Regulations

Court of Appeals for the appropriate

circuit by January 14, 2002. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Nitrogen Oxides, Ozone, Volatile

Organic Compounds.

Dated: October 15, 2001.

David A. Ullrich,

Deputy Regional Administrator, Region 5.

For the reasons stated in the

preamble, part 52, chapter I, title 40 of

the Code of Federal Regulations is

amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart P—Indiana

2. Section 52.770 is amended by

adding paragraph (c)(145) to read as

follows:

§ 52.770 Identification of Plan.

* * * * *

(c) * * *

(145) Indiana submitted on December

17, 1997, as part of the 9% Rate of

Progress Plan, an agreed order between

U.S. Steel and the Indiana Department

of Environmental Management. Section

3 of Exhibit E requires U.S. Steel to

establish a coke plant process water

treatment plant at its Gary Works.

(i) Incorporation by Reference.

(A) Section 3 of Exhibit E of the

March 22, 1996, Agreed Order between

U.S. Steel (currently USX Corporation)

and the Indiana Department of

Environmental Management.

3. Section 52.777 is amended by

adding paragraph (y) to read as follows:

§ 52.777 Control strategy: photochemical

oxidants (hydrocarbons).

* * * * *

(y) Lake and Porter Counties

Attainment Demonstration Approval—

On December 21, 2000, Indiana

submitted a 1-hour ozone attainment

demonstration plan as a requested

revision to the Indiana State

Implementation Plan. This approval

includes: A modeled demonstration of

attainment, a plan to reduce ozone

precursor emissions by 3 percent per

year from 2000 to 2007, and associated

conformity budgets for 2002 and 2005,

a revision to the NOX waiver, a

contingency measures plan for both the

ozone attainment demonstration and the

post-1999 ROP plan, the conformity

budgets for the 2007 attainment year,

until such time that revised budgets are

submitted and found adequate for

conformity purposes as called for by the

state in its commitment to recalculate

and apply a revised budget for

conformity within two years of the

formal release of MOBILE6, the RACM

analysis, the commitment to conduct a

mid-course review of the attainment

status of the Lake Michigan area, and an

agreed order between U.S. Steel

(currently USX Corporation) and the

IDEM signed by IDEM on March 22,

1996, which requires U.S. Steel to

establish a coke plant process water

treatment plant at its Gary Works.

Today’s action finalizes approval of

Indiana’s 1-hour ozone attainment

demonstration SIP revision.

[FR Doc. 01–27722 Filed 11–9–01; 8:45 am]

BILLING CODE 6560–50–P