[Federal Register Volume 79, Number 237 (Wednesday, December 10, 2014)]
[Rules and Regulations]
[Pages 73205-73210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28799]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R05-OAR-2012-0989; FRL 9920-14-Region 5]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Indiana; Redesignation of 
Lake and Porter Counties to Attainment of the 2008 Eight-Hour Ozone 
Standard

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is disapproving a 
December 5, 2012, request from the state of Indiana to redesignate Lake 
and Porter Counties to attainment of the 2008 ozone National Ambient 
Air Quality Standard (NAAQS or standard) because Indiana has not 
demonstrated that the Chicago-Naperville, Illinois-Indiana-Wisconsin 
(IL-IN-WI) ozone nonattainment area (Chicago nonattainment area), which 
includes Lake and Porter Counties, has attained this NAAQS. EPA is also 
disapproving Indiana's ozone maintenance plan and Motor Vehicle 
Emission Budgets (MVEBs) for Volatile Organic Compounds (VOC) and 
Nitrogen Oxides (NO<INF>X</INF>), submitted with Indiana's ozone 
redesignation request.

DATES: This final rule is effective January 9, 2015.

ADDRESSES: EPA has established a docket for this action: Docket ID No. 
EPA EPA-R05-OAR-2012-0989. All

[[Page 73206]]

documents in the docket are listed on the www.regulations.gov Web site. 
Although listed in the index, some information is not publicly 
available, i.e., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
We recommend that you telephone Edward Doty, Environmental Scientist, 
at (312) 886-6057 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6057, 
<a href="/cdn-cgi/l/email-protection#c4a0abb0bdeaa1a0b3a5b6a084a1b4a5eaa3abb2"><span class="__cf_email__" data-cfemail="a6c2c9d2df88c3c2d1c7d4c2e6c3d6c788c1c9d0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. This supplementary information section is arranged 
as follows:

Table of Contents

I. What is the background for this action?
II. What comments did we receive on the proposed rule?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    The background for this action is discussed in detail in EPA's June 
30, 2014, proposed rule (79 FR 36692). In that proposed rulemaking, we 
noted that, under EPA regulations at 40 CFR part 50, the 2008 ozone 
standard is violated when the three-year average of the annual fourth-
highest daily maximum eight-hour ozone concentrations at any monitoring 
site in the subject area \1\ is greater 0.075 parts per million parts 
of air (ppm). See 77 FR 30088 (May 21, 2012) for further information 
regarding area designations for the 2008 ozone standard and 77 FR 34221 
(June 11, 2012) for information regarding the designation of the 
Chicago-Naperville, IL-IN-WI area for the 2008 ozone standard. See 40 
CFR 50.15 and appendix P to 40 CFR part 50 regarding the ozone data 
requirements for a determination of whether an area has attained the 
2008 ozone standard. Under section 107(d)(3)(E) of the Clean Air Act 
(CAA), EPA may redesignate a nonattainment area (or a portion thereof) 
to attainment if sufficient complete, quality-assured data are 
available to demonstrate that the nonattainment area as a whole has 
attained the standard and if all other requirements of section 
107(d)(3)(E) have been met.
---------------------------------------------------------------------------

    \1\ In this case, the Chicago-Naperville, IL-IN-WI ozone 
nonattainment area for the 2008 eight-hour ozone NAAQS. This area is 
composed of Lake and Porter Counties in Indiana; Cook, DuPage, Kane, 
Lake, McHenry, and Will Counties, Aux Sable and Goose Lake Townships 
in Grundy County, and Oswego Township in Kendall County in Illinois; 
and the area east of and including the Interstate 94 corridor in 
Kenosha County in Wisconsin.
---------------------------------------------------------------------------

    The Indiana Department of Environmental Management (IDEM) submitted 
a request for the redesignation of Lake and Porter Counties to 
attainment of the 2008 ozone standard on December 5, 2012. The 
redesignation request included summarized ozone data for all monitors 
in the Chicago-Naperville, IL-IN-WI ozone nonattainment area along with 
other information specific to Lake and Porter Counties to demonstrate 
that all requirements of section 107(d)(3)(E) of the CAA have been 
satisfied. The June 30, 2014, proposed disapproval provides a detailed 
discussion of the ozone data for the period of 2006 through 2013 (see 
tables 1 and 2 in the June 30, 2014, proposed rule at 79 FR 36694), 
which show a violation of the 2008 ozone standard in the Chicago-
Naperville, IL-IN-WI area based on current, quality-assured ozone data. 
It does not, however, discuss in detail other components of Indiana's 
submittal because EPA believes that Indiana failed to meet the most 
basic requirement for redesignation, a demonstration that the Chicago-
Naperville, IL-IN-WI ozone nonattainment area has attained the 2008 
ozone standard. We proposed to disapprove Indiana's ozone redesignation 
request based on the violation of the 2008 ozone standard, but we 
proposed no action on Indiana's MVEBs and ozone maintenance 
demonstration for the 2008 ozone standard.

II. What comments did we receive on the proposed rule?

    During the public comment period for the June 30, 2014, proposed 
rule, we received two sets of comments, which we summarize and address 
here. One set of comments was submitted by IDEM and the other set was 
submitted by an industrial corporation with a facility in Gary, 
Indiana.
    Comment 1: Both commenters objected to EPA's proposed disapproval 
of Indiana's ozone redesignation request based on violations of the 
2008 ozone standard at several monitoring sites in the Chicago-
Naperville, IL-IN-WI ozone nonattainment area, but outside of Lake and 
Porter Counties (no violations of the 2008 ozone standard were recorded 
in Lake and Porter Counties), during the period of 2011-2013 (the most 
recent three-year period with quality-assured, state-certified ozone 
monitoring data).\2\ These objections are based on the commenters' view 
that section 107(d)(3)(E) of the CAA provides for the redesignation of 
a portion of a nonattainment area as well as for the entire 
nonattainment area. Both commenters contend that, since all monitors in 
Lake and Porter Counties have monitored attainment of the 2008 ozone 
standard and since Indiana's ozone redesignation request only applies 
to Lake and Porter Counties, EPA has erred in its interpretation of 
section 107(d)(3)(E) and in its insistence of judging Indiana's 
redesignation request based on the current ozone data for all ozone 
monitors in the Chicago-Naperville, IL-IN-WI nonattainment area.
---------------------------------------------------------------------------

    \2\ As noted in the June 30, 2014, proposed rule, Chicago-
Naperville, IL-IN-WI ozone nonattainment area has experienced a 
violation of the 2008 ozone standard for every three-year period 
from 2009 to 2013.
---------------------------------------------------------------------------

    IDEM makes two additional points in support of this comment. First, 
IDEM asserts that the plain language of section 107(d)(3)(E) does not 
mandate that EPA use as a prerequisite for approval of a redesignation 
request that all monitors in a nonattainment area show attainment of 
the NAAQS. IDEM contends that EPA misreads section 107(d)(3)(E) with 
regard to the word ``area'' contained in subsection 107(d)(3)(E)(i). 
IDEM argues that this subsection cannot be parsed from section 
107(d)(3)(E) as a whole, and that a reading of section 107(d)(3)(E) as 
a whole shows that the word ``area'' in subsection 107(d)(3)(E)(i) may 
apply to a portion of the nonattainment area, as covered by the state's 
redesignation request, in this case Lake and Porter Counties, since 
other subsections of section 107(d)(3)(E) and the lead-in clauses of 
section 107(d)(3)(E) (of general applicability to all of section 
107(d)(3)(E) and its subsections) can apply to a portion of the 
nonattainment area.\3\ IDEM cites two cases, Kokoszka v.

[[Page 73207]]

Bellford, 417 U.S. 642, 650 (1974), and Dada v. Mukasey, 544 U.S. 1 
(2008), for the principle that ``When interpreting a statute, the court 
will not look merely to a particular clause in which general words may 
be used, but will take in connection with it the whole statute . . .''. 
IDEM argues that this legal principle supports its view that 
interpretation of ``the area'' in subsection 107(d)(3)(E)(i) must be 
informed and modified by ``a nonattainment area (or portion thereof)'' 
as provided in the lead-in clauses of section 107(d)(3)(E).
---------------------------------------------------------------------------

    \3\ The leading clauses of section 107(d)(3)(E) refer to the 
``nonattainment area (or portion thereof).'' In addition, the term 
``area'' in subsections 107(d)(3)(E)(ii), (iv), and (v) can be 
applied to a sub-portion of a nonattainment area, generally to a 
state's portion of a multi-state nonattainment area.
---------------------------------------------------------------------------

    Second, IDEM cites EPA's approval of the redesignation of 
Kentucky's portion of the Cincinnati-Hamilton, Ohio-Kentucky (OH-KY) 
nonattainment area to attainment of the 1990 ozone standard in further 
support of its position. IDEM notes that EPA approved a redesignation 
request for the Kentucky portion even though the Ohio portion of this 
ozone nonattainment area was denied redesignation. IDEM points out that 
in doing so, EPA interpreted the term ``area'' in subsection 
107(d)(3)(E)(ii) to mean a portion of the nonattainment area, rather 
than the nonattainment area as a whole. Similarly, IDEM notes that, in 
EPA's subsequent final rule approving the redesignation of the Kentucky 
portion of the nonattainment area, EPA said that it had the authority 
to redesignate the Kentucky portion of the nonattainment area 
independent of whether Ohio had met all of the requirements for a fully 
approved State Implementation Plan (SIP) for its portion of the 
nonattainment area. IDEM believes that EPA's interpretation of ``area'' 
in subsection 107(d)(3)(E)(ii) in the redesignation of the Kentucky 
portion of the Cincinnati-Hamilton, OH-KY nonattainment area is the 
correct interpretation and should apply to subsection 107(d)(3)(E)(i) 
to support the approval of Indiana's ozone redesignation request for 
Lake and Porter Counties.
    Response 1: Section 107(d)(3)(E) of the CAA specifies five criteria 
for evaluating the adequacy of a state's redesignation request. A key 
element of these criteria is contained in subsection 107(d)(3)(E)(i), 
which requires that the Administrator (EPA) determine that ``the area 
has attained the national ambient air quality standard.'' EPA has 
consistently interpreted ``area'' in this subsection to mean the entire 
nonattainment area and has required that all monitors in the subject 
nonattainment area have monitored attainment of the subject air quality 
standard. This is true for multi-state nonattainment areas, such as the 
Chicago-Naperville, IL-IN-WI nonattainment area, and for single state 
nonattainment areas. See, e.g., 77 FR 6743, February 9, 2012, (proposed 
redesignation of the Illinois portion of the Chicago-Gary-Lake County, 
IL-IN nonattainment area for the 1997 ozone standard); 76 FR 79579, 
December 22, 2011, (proposed redesignation of the Illinois portion of 
the St. Louis, Missouri-Illinois nonattainment area for the 1997 ozone 
standard); 72 FR 26759, May 11, 2007, (proposed redesignation of the 
Kentucky portion of the Huntington-Ashland, Kentucky-West Virginia 
nonattainment area for the 1997 ozone standard); 72 FR 1474, January 
12, 2007, (proposed redesignation of the West Virginia portion of the 
Parkersburg-Marietta, West Virginia-Ohio nonattainment area for the 
1997 ozone standard); and 75 FR 12090, March 12, 2010, (proposed 
redesignation of the Indiana portion of the Chicago-Gary-Lake County, 
Illinois-Indiana nonattainment area for the 1997 ozone standard).
    The commenters assert that section 107(d)(3)(E) criteria allow the 
redesignation of a portion of a nonattainment area. We agree with these 
commenters that EPA can, and has under certain circumstances, 
redesignated portions of a nonattainment area to attainment of the 
NAAQS while leaving other portions of the nonattainment area designated 
as nonattainment. See the above list of proposed rules for proposed 
partial area redesignations. However, regardless of whether EPA 
considers a redesignation of a part of a nonattainment area or the 
redesignation of an entire nonattainment area, EPA considers the air 
quality data for the entire nonattainment area to establish compliance 
with the air quality requirements of subsection 107(d)(3)(E)(i). EPA 
has consistently taken this approach because to do otherwise could 
result in the stripping of source areas that are otherwise attaining 
the NAAQS away from the remainder of a nonattainment area that 
continues to violate the NAAQS. This would clearly undermine the CAA's 
intent for nonattainment areas to include both the violating areas and 
the source areas that contribute to the violations of the NAAQS, as 
expressed in subsection 107(d)(1)(A)(i) of the CAA. Redesignating 
portions of nonattainment areas when the areas, as wholes, are not 
attaining the NAAQS would also interfere with the CAA's emission 
control requirements that are designed to bring the nonattainment areas 
back into attainment of the NAAQS by controlling emissions in source 
areas within the nonattainment areas.
    EPA disagrees with IDEM that the CAA compels EPA to interpret the 
word ``area'' in subsection 107(d)(3)(E)(i) to mean a nonattainment 
area or a portion of a nonattainment area. The language of section 
107(d)(3)(E) and its subsections, read with the CAA as a whole, does 
not lend itself to a clear and unambiguous interpretation of the term 
``area'' in subsection 107(d)(3)(E)(i).
    IDEM argues that EPA must interpret ``area'' in subsection 
107(d)(3)(E)(i) in light of the CAA as a whole. EPA agrees, and 
believes that, contrary to IDEM's position, this legal principle 
supports EPA's reading of the statute. As noted above, if EPA were to 
interpret ``area'' in subsection 107(d)(3)(E)(i) to permit the agency 
to approve a redesignation where the air quality standard was not being 
attained in all portions of the nonattainment area, the agency would 
contravene Congress' intent that nonattainment areas include not only 
areas that do not meet the air quality standard but also areas ``that 
contribute [ ] to ambient air quality in a nearby area that does not 
meet'' the standard. 42 U.S.C. 7407(d)(1)(A)(i). Interpreting the 
statute in the manner suggested by IDEM would allow a portion of a 
nonattainment area, which itself is not violating the NAAQS but is 
contributing to nonattainment in that area, to be redesignated to 
attainment immediately after being designated as part of the 
nonattainment area under CAA subsection 107(d)(1)(A)(i) if the state 
could demonstrate compliance with the provisions of subsections 
107(d)(3)(E)(ii)-(v). This is not a reasonable reading of the statute, 
and thus EPA disagrees with IDEM that, in reading the statute as a 
whole, the word ``area'' in subsection 107(d)(3)(E)(i) should be 
interpreted to include ``a portion of the nonattainment area.''
    In fact, the requested redesignation at issue illustrates precisely 
the hypothetical example set out above. On June 11, 2012, EPA finalized 
its designation of Lake and Porter Counties as part of the Chicago-
Naperville, IL-IN-WI ozone nonattainment area (77 FR 34221). EPA 
explained in that rule that Lake and Porter Counties were included in 
the ozone nonattainment area designation based on their emissions and 
contribution to high ozone concentrations in other parts of the 
nonattainment area. See EPA's final technical support document (TSD) 
for the designation of the Chicago-Naperville, IL-IN-WI area (available 
at http://www.epa.gov/ozonedesignations/2008standards/documents/

[[Page 73208]]

R5_Chicago_TSD_Final.pdf). In particular, in the TSD, EPA noted that 
Lake and Porter Counties account for 10.4 percent of the total VOC 
emissions and 18.8 percent of the total NO<INF>X</INF> emissions for 
the entire Chicago consolidated statistical area. Id. at 9. In the TSD, 
EPA also noted that other county-specific factors, including population 
levels, traffic levels (vehicle miles of travel), and meteorology 
during high ozone days in the Chicago-Naperville, IL-IN-WI area also 
supported the inclusion of Lake and Porter Counties in the Chicago-
Naperville, IL-IN-WI ozone nonattainment area for the 2008 ozone 
standard.
    In the designations process, Indiana objected to the inclusion of 
Lake and Porter Counties in the ozone nonattainment area, and EPA 
responded to those comments. See EPA's ``ADDENDUM to Response to 
Significant Comments on the State and Tribal Designation 
Recommendations for the 2008 Ozone National Ambient Air Quality 
Standards (NAAQS) for Section 3.2.5.1. Chicago-Naperville, IL-IN-WI 
area'' (RTC Addendum), (available at http://www.epa.gov/ozonedesignations/2008standards/documents/20120531chicagortc.pdf). In 
both the TSD and the RTC Addendum, EPA discussed ozone modeling 
analyses conducted by the Lake Michigan Air Directors Consortium 
(LADCO) that demonstrate that Lake and Porter Counties' ozone precursor 
emissions significantly contributed to high ozone levels at the Zion, 
Illinois monitoring site (the worst-case ozone design value monitoring 
site considered during ozone designation process for the Chicago-
Naperville, IL-IN-WI area) during the high ozone days modeled by LADCO 
(TSD at 17-19 and RTC Addendum at 10-12).
    EPA's inclusion of Lake and Porter Counties as part of the Chicago-
Naperville, IL-IN-WI ozone nonattainment area for the 2008 ozone 
standard is also consistent with section 107(d)(1) of the CAA and EPA's 
interpretation of the statute as it pertains to ozone designations as 
expressed in a December 4, 2008, EPA policy memorandum (``Area 
Designations for the 2008 Revised Ozone National Ambient Air Quality 
Standards,'' from Robert J. Meyers, Principal Deputy Assistant 
Administrator, to Regional Administrators, Regions I-X). As noted in 
that memorandum, because ``[g]round-level ozone and ozone precursor 
emissions are pervasive and readily transported . . . EPA believes it 
is important to examine ozone-contributing emissions across a 
relatively broad geographic area.'' Id. at 3.
    Indiana requested redesignation of the Lake and Porter Counties 
portion of the Chicago-Naperville, IL-IN-WI nonattainment area in 
December 2012, six months after the initial designation of the 
nonattainment area was finalized. The state's request is based on the 
same years of air quality data that were used to designate the area 
nonattainment. Thus, interpreting ``area'' in section 107(d)(3)(E) as 
IDEM suggests would have the effect of immediately reversing the 
designation of the nonattainment area, an outcome that Congress could 
not have intended. Indiana has objected to the inclusion of Lake and 
Porter Counties in the Chicago nonattainment area and it has filed a 
petition for judicial review of that decision.\4\ The redesignation 
process, however, is not the proper forum in which to challenge EPA's 
designation decisions.
---------------------------------------------------------------------------

    \4\ Mississippi Commission on Environmental Quality, et al. v. 
EPA (D.C. Cir. No. 12-1309 and consolidated cases).
---------------------------------------------------------------------------

    IDEM's assertion that EPA's redesignation of the Kentucky portion 
of the Cincinnati-Hamilton, OH-KY nonattainment area for the 1990 ozone 
standard is inconsistent with EPA's action here is also mistaken. In 
that redesignation, EPA clearly considered ozone data for all ozone 
monitoring sites in the entire Cincinnati-Hamilton nonattainment area, 
and not just for the portion of the area that was being redesignated, 
in determining that the Kentucky portion of the area had met the 
criteria for redesignation. 65 FR 3630 (January 24, 2000) and 65 FR 
37879 (June 19, 2000). IDEM accurately notes that EPA interpreted the 
word ``area'' for purposes of subsection 107(d)(3)(E)(ii) to mean the 
state-specific portion of the nonattainment area in the Cincinnati-
Hamilton redesignation, consistent with EPA's long-standing 
interpretation of that provision.
    EPA acknowledges that the meaning of the word ``area'' in section 
107(d)(3)(E) is ambiguous. In the Cincinnati-Hamilton redesignation 
cited by IDEM, and in other actions, EPA has consistently interpreted 
the word ``area'' in subsections 107(d)(3)(E)(ii), (iv), and (v) to 
include the single-state portions of multi-state nonattainment areas in 
addition to entire nonattainment areas seeking redesignation. 
Subsection 107(d)(3)(E)(ii) requires that an area have a fully approved 
applicable SIP, subsection 107(d)(3)(E)(iv) requires that an area have 
a fully approved maintenance plan, and subsection 107(d)(3)(E)(v) 
requires an area to have met all applicable requirements under section 
110 and part D. These subsections are distinguishable from subsection 
107(d)(3)(E)(i) in that interpreting ``area'' in these subsections to 
include a single-state portion of a multi-state area does not interfere 
with any other requirement of the CAA. Furthermore, EPA interprets 
``area'' in subsections 107(d)(3)(E)(ii), (iv), and (v) to include 
portions of nonattainment areas because those provisions all relate to 
SIP revision requirements, and each state is independently responsible 
for obtaining approval of the applicable SIP provisions for 
redesignation.
    EPA does not think it is necessary to require one state to wait for 
another state to complete its SIP actions before becoming eligible for 
redesignation if the nonattainment area as a whole is attaining the 
NAAQS. On the other hand, although EPA will determine that a state 
containing a portion of a multi-state nonattainment area has satisfied 
subsection 107(d)(3)(E)(iv) where only that state has submitted a fully 
approved maintenance plan, EPA requires as a matter of course that the 
state communicate with the other states governing the multi-state 
nonattainment area and demonstrate projected maintenance of the NAAQS 
in the other portions of the nonattainment area, even in the absence of 
fully approved maintenance plans from those other states. EPA has, 
therefore, been consistent in interpreting ``area'' in 107(d)(3)(E) to 
mean the entire nonattainment area with respect to air quality 
concerns, even where the Agency has interpreted the term ``area'' to 
include single-state portions of multi-state nonattainment areas when 
the requirement is limited to SIP submission and processing.
    In conclusion, EPA believes that interpreting the word ``area'' in 
subsection 107(d)(3)(E)(i) to mean a portion of a nonattainment area 
contravenes the CAA mandate in subsection 107(d)(1)(A)(i) for the 
nonattainment area to include both the violating areas and the source 
areas that contribute to the violations of the NAAQS. Even if EPA 
believed that it could redesignate a portion of an area when another 
portion of the area is violating the NAAQS, we would decline to take 
that approach as a policy matter because we believe that our current 
interpretation of subsection 107(d)(3)(E)(i) is most protective of 
human health and the environment.
    Comment 2: IDEM requests that EPA re-evaluate Indiana's December 5, 
2012, redesignation request in total, after consideration of its 
arguments as summarized in comment 1, to determine

[[Page 73209]]

whether the request as a whole conforms to the requirements of section 
107(d)(3)(D).
    Response 2: As explained in response to Comment 1 above, we 
disagree with IDEM's interpretation of ``area'' in subsection 
107(d)(3)(E)(i) and have determined that this subsection requires 
attainment of the 2008 ozone standard in the entire Chicago-Naperville, 
IL-IN-WI nonattainment area. Since the 2008 ozone standard has not been 
attained in the entire nonattainment area, as evidenced by the ozone 
monitoring data summarized in the June 30, 2014, proposed rule (see 
tables 1 and 2 at 79 FR 36692, 36694-36695), we conclude that the 
Chicago-Naperville, IL-IN-WI area and Indiana's ozone redesignation 
request for Lake and Porter Counties have not met the most basic 
requirement for redesignation, attainment of the 2008 ozone NAAQS.
    Since attainment of the NAAQS is a prerequisite for development of 
an acceptable attainment emissions inventory (and the MVEBs derived 
thereof) and for demonstrations of maintenance, we cannot approve these 
components of Indiana's ozone redesignation request for Lake and Porter 
Counties. In our June 30, 2014, proposed rule, we explained that rather 
than acting on these components of Indiana's redesignation request, 
which would almost certainly have resulted in proposed disapproval on 
the grounds of the failure of the Chicago-Naperville, IL-IN-WI area to 
attain the 2008 ozone standard, we chose to take no action on these 
components (79 FR 36692, 36696). In so doing, we explained that an 
approvable ozone maintenance plan must contain an ozone attainment 
emissions inventory documenting VOC and NO<INF>X</INF> emissions for 
the period in which the area has attained the ozone standard. We 
concluded that ``[s]ince the Chicago ozone nonattainment area continues 
to violate the 2008 eight-hour ozone standard, we cannot conclude that 
Indiana has developed an acceptable attainment year emissions 
inventory. This means that the ozone maintenance demonstration portion 
of the ozone maintenance plan is unacceptable.'' Id. Similarly, with 
regard to Indiana's proposed MVEBs for VOCs and NO<INF>X</INF>, we 
explained that ``since the estimation of the VOC and NO<INF>X</INF> 
MVEBs depends on the determination of mobile source emissions that, 
along with other emissions in the nonattainment area, provide for 
attainment of the ozone standard, and since the Chicago nonattainment 
area continues to violate the 2008 eight-hour ozone standard, we 
conclude that Indiana's estimates of the VOC and NO<INF>X</INF> MVEBs 
are also not acceptable.'' Id.
    Subsequently, IDEM submitted its comment requesting that we take 
action on the remaining components of its submittal in light of our re-
evaluation of our interpretation of ``area'' in subsection 
107(d)(3)(E)(i). We had proposed to take no action on those remaining 
components; but based on our earlier findings that those components are 
not approvable and on IDEM's comment urging us to take action on its 
request as a whole, we now conclude that we cannot approve the 
remaining portions of Indiana's request--its maintenance plan and its 
proposed MVEBs. As a result, we are in this action disapproving these 
remaining portions of Indiana's submission. We believe this disapproval 
is a logical outgrowth of our proposal, because we included in that 
notice not only our explanation for why these elements were not 
approvable, but also indicated that ``if we were to propose actions on 
these ozone redesignation request elements, we would find it necessary 
to propose disapproval.'' 79 FR 36692, 36696. We believe this alerted 
commenters that we were considering disapproval of the maintenance plan 
and MVEBs. Therefore, we are determining that the MVEBs and ozone 
maintenance plan included with Indiana's ozone redesignation request 
must be disapproved on the basis that the Chicago-Naperville, IL-IN-WI 
area continues to violate the 2008 ozone NAAQS.
    Comment 3: The corporate commenter asserted that EPA's failure to 
redesignate the portions of nonattainment areas that meet the NAAQS 
unnecessarily burdens economic development in such areas. The commenter 
objected to the implementation of (nonattainment) New Source Review 
(NSR) requirements in these areas on the basis that such implementation 
unjustly burdens the sources in these areas.
    Response 3: Since the Chicago-Naperville, IL-IN-WI area continues 
to violate the 2008 ozone standard, it is imperative that NSR continue 
to be applied in all parts of the nonattainment area to avoid 
exacerbation of the existing ozone air quality problem. The 
``attainment'' portions of nonattainment areas that the commenter 
refers to are in this case source areas contributing to violations of 
the NAAQS in other portions of the nonattainment area. See also our 
response to Comment 1, above. Therefore, it is inappropriate to 
redesignate the attaining portions of the nonattainment areas and to 
remove NSR requirements, including new source offsets, in these 
attaining portions while violations of the NAAQS continue in other 
portions of the nonattainment areas.

III. What action is EPA taking?

    We are disapproving a December 5, 2012, request from the state of 
Indiana to redesignate Lake and Porter Counties to attainment of the 
2008 ozone NAAQS because Indiana has not demonstrated that the Chicago-
Naperville, IL-IN-WI ozone nonattainment area, which includes Lake and 
Porter Counties, has attained this NAAQS, as required by subsection 
107(d)(3)(E)(i) of the CAA. EPA is also disapproving Indiana's ozone 
maintenance plan and MVEBs, submitted with Indiana's ozone 
redesignation request, because Indiana has failed to successfully 
present MVEBs and an ozone maintenance plan which reflect attainment 
and maintenance of the 2008 ozone standard in the Chicago-Naperville, 
IL-IN-WI ozone nonattainment area as evidenced by the continued 
violation of this ozone standard in this ozone nonattainment area.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely disapproves state law as not meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

Unfunded Mandates Reform Act

    Because this rule disapproves 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

[[Page 73210]]

described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely disapproves a state rule, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule is not approved to apply on any Indian reservation land 
or in any other area where EPA or an Indian tribe has demonstrated that 
a tribe has jurisdiction. In those areas of Indian country, the rule 
does not have tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it disapproves a state rule.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

Executive Order 12898: Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the CAA. 
Accordingly, this action merely disapproves certain state requirements 
for inclusion into the SIP under section 110 and subchapter I, part D 
of the CAA and will not in-and-of itself create any new requirements. 
Accordingly, it does not provide EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 9, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Volatile organic compounds.

    Dated: November 25, 2014.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Section 52.777 is amended by adding paragraph (ss), to read as 
follows:


Sec.  52.777  Control strategy: photochemical oxidents (hydrocarbons).

* * * * *
    (ss) Disapproval. EPA is disapproving Indiana's December 5, 2012, 
ozone redesignation request for Lake and Porter Counties for the 2008 
ozone standard. EPA is also disapproving Indiana's motor vehicle 
emission budgets and ozone maintenance plan submitted with the 
redesignation request.

[FR Doc. 2014-28799 Filed 12-9-14; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>