Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a redesignation request submitted by the State of Indiana. This action, which Indiana requested on March 2, 2000, redesignates Marion County (Indianapolis) to attainment of the National Ambient Air Quality Standards (NAAQS) for lead. In addition, EPA is also approving a maintenance plan for Marion County. The plan is designed to ensure maintenance of the lead NAAQS for at least 10 years. Indiana submitted the maintenance plan with the redesignation request.

DATES:

This “direct final” rule is effective on July 10, 2000, unless EPA receives adverse written comments by June 9, 2000. If EPA receives an adverse written comment, EPA will publish a timely withdrawal of the rule in the Federal Register and will inform the public that the rule will not take effect.

ADDRESSES:

You may send written comments to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the revision request are available for inspection at the following address: Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (We recommend that you telephone Phuong Nguyen, Environmental Scientist, at (312) 886-6701 before visiting the Region 5 office.)

FOR FURTHER INFORMATION CONTACT:

Phuong Nguyen at (312) 886-6701.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we”, “us” or “our” are used we mean EPA. This supplemental information section is organized as follows:

I. General Information

1. What action is EPA taking today?

2. Why is EPA taking this action?

3. What is the background of this action?

II. Evaluation of the Redesignation Request

1. What criteria did EPA use to review the redesignation request?

2. Did Indiana satisfy these criteria for Marion County?

III. Maintenance Plan

What are the maintenance plan requirements and how does the submission meet maintenance plan requirements?

IV. Final Rulemaking Action

What action is EPA taking?

V. Administrative Requirements

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility

F. Unfunded Mandates

G. Submission to Congress and the Comptroller General

H. National Technology Transfer and Advancement Act

I. Petitions For Judicial Review

I. General Information

1. What Action Is EPA Taking Today?

In this action, EPA is approving the lead redesignation request submitted by the State of Indiana for Marion County. In addition, EPA is also approving the lead maintenance plan for this County.

2. Why IS EPA Taking This Action?

EPA is taking this action because the redesignation request meets the five applicable Clean Air Act (Act) criteria. EPA designated Marion County as a nonattainment area for lead on November 6, 1991 (56 FR 56694). Marion County now, however, meets the lead NAAQS. Indiana reported that there have been no exceedances documented in Marion County at any monitoring site since the second quarter of 1994. Therefore, the monitoring data show that the NAAQS for lead has been attained in all portions of Marion County. The State has developed a maintenance plan for keeping lead levels within the health-based air quality standard for the next 10 years and beyond. This maintenance plan requires the County to consider impacts of future activities on air quality and to manage those activities.

3. What Is the Background for This Action?

On November 6, 1991, EPA designated a small portion of Franklin Township, Marion County, Indiana as a primary nonattainment area for the lead NAAQS (56 FR 56694). On the same date, EPA designated another small portion of Wayne Township, in Marion County, Indiana as an unclassifiable area for lead.

Section 191(a) of the Act requires that States containing areas designated nonattainment for certain pollutants, including lead, submit a revision to their State Implementation Plan (SIP) meeting the requirements of part D, Title I of the Act, within 18 months of the nonattainment designation.

Section 192(a) of the Act further provides that SIPs must provide for attainment of the applicable NAAQS as expeditiously as practicable, but no later than 5 years from the date of the nonattainment designation.

On March 23, 1994, the State submitted a revised rule (326 IAC 15) and supplemented the submittal on September 21, 1994. EPA deemed the submittal complete in a September 23, 1994 letter, and approved the rule as part of the SIP on May 3, 1995 (60 FR 21717), fulfilling the requirement of section 192(a).

On February 25, 1997, Refined Metals Corporation sent a letter to the Indianapolis Environmental Resources Management Division (ERMD) stating that all operations at its facility would cease on February 28, 1997. On March 13, 1997, the Indianapolis ERMD received a second letter from the company requesting termination of its current operating permit. The company also withdrew its title V permit application. The Refined Metals facility was the only major lead source in the current nonattainment portion of Marion County.

II. Evaluation of the Redesignation Request

1. What Criteria Did EPA Use to Review the Redesignation Request?

Section 107(d)(3)(E) of the Act, as amended in 1990, establishes five requirements to be met before EPA may designate an area from nonattainment to attainment. These are:

(A) The area has attained the applicable NAAQS.

(B) The area has a fully-approved SIP under section 110(k) of the Act.

(C) The EPA has determined that the improvement in air quality in the area is due to permanent and enforceable emission reductions.

(D) The EPA has determined that the maintenance plan for the area has met all of the requirements of section 175A of the Act.

(E) The State has met all requirements applicable to the area under section 110 and part D of the Act.

2. Did Indiana Satisfy These Criteria for Marion County?

A. Demonstrated Attainment of the NAAQS

Relevant agency guidance is provided in both an April 21, 1983, document on “Section 107 Designation Policy Summary,” and a September 4, 1992, document on “Procedures for processing requests to redesignate areas to attainment.” The April 21, 1983, memorandum states that eight consecutive quarters of data showing lead NAAQS attainment are required for redesignation. The September 4, 1992, memorandum states that additional dispersion modeling is not required in support of a lead redesignation request if there is an adequate modeled attainment demonstration submitted and approved as part of the implemented SIP, and there is no indication of an existing air quality violation.

Indiana's March 2, 2000, submittal provided ambient monitoring data showing that Marion County has met the lead NAAQS for the period 1995 to 1998. The most recent air quality data shows there has been no exceedance reported in Marion County for the last 5 years (1995-1999).

Dispersion modeling is commonly used to demonstrate attainment of the lead NAAQS. Indiana used the ISCLT2 model to predict lead concentrations, as discussed in the May 3, 1995, Federal Register (60 FR 21717). Use of this analysis, in conjunction with information about current emission levels, also indicates that the NAAQS has been attained. No further dispersion modeling is needed for the County redesignation. Indiana has also provided evidence that sources in this County are complying with the specific limits in the SIP, 326 IAC 15-1-2 . The Indiana lead SIP rule applies to all significant stationary sources of lead in the County. Based on this evidence, EPA concludes that emissions are sufficiently low to assure attainment throughout the area currently designated nonattainment.

B. Fully Approved SIP

The SIP for the area at issue must be fully approved under section 110(k) of the Act and must satisfy all requirements that apply under that section.

EPA's guidance for implementing section 110 of the Act is contained in the general preamble to title I (44 FR 20372, April 14, 1979; and 57 FR 13498, April 16, 1992). EPA has previously determined that the lead SIP for Marion County, with limits in 326 IAC 15-1-2 , meets the requirements of section 110(a)(2)(D) and sections 191(a) and 192(a) of the Act. Specifically, EPA approved the lead SIP for Marion County (in 326 IAC 15-1-2 ) on May 3, 1995 (60 FR 21717).

The current submittal provides for the control of both stack and fugitive emissions by requiring revised emission limitations, improved monitoring, building enclosures, an amended fugitive lead dust plan, and contingency measures in the event that subsequent violations of the lead NAAQS occur. The previous modeling showed that ambient air quality in the vicinity of Refined Metals met the NAAQS, which is consistent with the monitored lead concentration for this action. Given that the major source in the area has shut down, emission levels are now well below the levels shown in 1995 modeling to be sufficient to achieve the NAAQS.

C. Permanent and Enforceable Reductions in Emissions

Indiana, in its submission, cites four factors which it believes helped the area attain the lead NAAQS. These are:

1. The permanent shutdown of the Refined Metals facility in the nonattainment portion of the County;

2. Implementation of the federal initiative requiring the elimination of lead in gasoline used by on-road mobile sources;

3. Compliance by Quemetco, Inc., with the lead SIP and the National Emission Standards for Hazardous Air Pollutants (NESHAP) for secondary lead smelters (40 CFR part 63, subpart X); and,

4. The permanent shutdown of four other facilities, which provided a small additional decrease of lead emissions in this area.

D. Fully Approved Maintenance Plan

Section 175(A) of the Act requires states that submit a redesignation request to include a maintenance plan to ensure that the attainment of the NAAQS for any pollutant is maintained. The maintenance plan is a SIP revision which provides for maintenance of relevant NAAQS in the area for at least ten years after the approval of a redesignation to attainment. Eight years after the redesignation, States must submit a revised maintenance plan demonstrating attainment for ten years following the initial ten-year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain contingency measures to assure that a state will promptly correct any violation of the standard that occurs after redesignation. The contingency provisions are to include a requirement that a state will implement all measures for controlling the air pollutant of concern that were contained in the SIP prior to redesignation.

The reductions discussed in section C above are permanent, and no significant increases in lead emission are expected. Therefore, we expect the area to remain in attainment. Additional discussion of the maintenance plan is provided below.

E. Part D and Section 110

To be redesignated to attainment, section 107(d)(3)(E) requires that an area must have met all applicable requirements of section 110(a)(2) and Part D of the Act. The EPA approved Indiana's previous SIP submittal because it satisfied all of the applicable Federal requirements (60 FR 21717). The submittal for Marion County also satisfies the requirements of sections 191(a) and 192(a) of the Act by providing the necessary elements to reach attainment of the lead NAAQS no later than 5 years from the January 6, 1992, nonattainment designation.

During 1994, an ambient monitor near the Refined Metals facility recorded some lead standard violations, apparently due to the company's failure to: keep the materials storage building under negative pressure; operate its continuous opacity monitor and to provide valid data for the M-1 baghouse; comply with the facility's lead dust control program; and maintain sweeper operating records. The complete shutdown of the Refined Metals facility on February 25, 1997, has eliminated most of the area's lead emissions.

III. Maintenance Plan

What Are the Maintenance Plan Requirements and How Does the Submission Meet Maintenance Plan Requirements?

Guidance on redesignations issued September 4, 1992 identified five topics for maintenance plans to address:

A. The Attainment Inventory

The State needs to identify the sources of emissions in the area as well as the emissions level sufficient to attain the lead NAAQS, and include emissions during the period when the area attained the NAAQS.

The March 2, 2000, submittal identified the lead emissions from major and minor permitted sources located in Marion County between 1985-1998. Indiana chose 1996 as the base year for the attainment emission inventory because that year has extensive lead emission data available.

B. Maintenance Demonstration

The State needs to demonstrate that future emissions will not exceed the level established by the attainment inventory.

On December 6, 1994, the Indiana Department of Environmental Management (IDEM) issued Refined Metals a notice of violation (Cause Number A-2521). On January 10, 1995, the IDEM and Refined Metals signed an agreed Order to Settle Cause Number A-2521. This agreement helped to decrease lead emissions from 2 tons per year in 1985 to 0.0179100 tons per year in 1996, and to eliminate all lead emissions entirely in 1997, due to the permanent shutdown of the Refined Metals facility.

Indiana projected the annual lead emissions increase from 1996 to 2010 to account for the increase in production at remaining sources in Marion County. The growth factors, which are contained in Enclosure C to the March 2, 2000, submittal, were used to calculate the projected growth in emissions from 1996 to 2010. Base on these factors, the annual lead emissions are expected to increase by 8.56% by the year 2010, from 2.897 tons per year in 1996 to 3.145 tons per year in 2010. The projected levels for the year 2010 will be considerably lower than the actual 1990 total Marion County lead emissions (9.331 tons per year). Therefore, even though other sources in the County are projected to have a slight emission increase by 2010, the projected emission levels are well below the levels needed to maintain the NAAQS.

C. Monitoring Network

The State must include provisions for continued operation of an appropriate air quality monitoring network.

The Indianapolis ERMD commits to continue monitoring for lead in Marion County at AIRS I.D. 18-097-0063 monitoring site and AIRS I.D. 18-097-0076 monitoring site located in the unclassifiable portion of the County, which is adjacent to the Quemetco, Inc. facility.

D. Verification of Continued Attainment

The State must show how it will track and verify the progress of the maintenance plan.

To verify future maintenance during the initial ten-year maintenance period, the IDEM will re-evaluate the emissions inventory once every three years. IDEM will re-evaluate the inventory based in part on the annual NET update. Indiana will prepare a new inventory if there is any new lead source growth or other changes from the initial attainment inventory.

E. Contingency Plan

The maintenance plan must include contingency measures which ensure prompt correction of any violation of the lead standards.

Future contingency measures for this area will include requiring any proposed stationary sources of lead emissions to comply with all applicable New Source Review provisions. The IDEM and the Indianapolis ERMD will also closely monitor existing stationary sources of lead emissions. These Agencies will use the two methods identified below to develop the additional controls to assure future attainment of the National Ambient Air Quality Standard for lead, if there is an exceedance of the lead standard:

1. During routine inspections of permitted stationary sources, the Indianapolis ERMD will evaluate any potential increases in lead emissions at these facilities, and,

2. The IDEM and the Indianapolis ERMD will examine the annual point source inventory for sources with increases in emissions and for any new sources. Emissions reporting is required by the annual “emission statement” reporting requirements found in 326 IAC 2-6.

EPA finds that these elements of Indiana's submittal satisfy applicable maintenance plan requirements.

IV. Final Rulemaking Action

What Action Is EPA Taking?

EPA is approving Indiana's lead redesignation request, which was submitted on March 2, 2000. In addition, EPA is also approving the maintenance plan for Marion County, which was submitted with the redesignation request, as adequately ensuring that the lead NAAQS will be maintained.

The EPA is publishing this action without prior proposal because EPA views this as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this Federal Register publication, the EPA is proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless EPA receives relevant adverse written comment by June 9, 2000. Should the Agency receive such comments, it will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on July 10, 2000.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will 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, 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., versus U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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. section 804(2). This rule will be effective July 10, 2000 unless EPA receives adverse written comments by June 9, 2000.

H. National Technology Transfer and Advancement Act

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.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 10, 2000. 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Lead
• Reporting and recordkeeping requirements

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

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

For the reasons stated in the preamble, title 40, Chapter I of the Code of Federal Regulation are 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 52.797 is amended by removing the introductory text and adding paragraph (d) to read as follows:

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

2. The table in § 81.315 entitled “Indiana Lead” is amended to read as follows: