[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78164-78167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31339]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2010-0850; FRL-9238-9]
Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin; The Milwaukee-Racine and Sheboygan Areas; Determination of
Attainment of the 1997 8-hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is making determinations under the Clean Air Act (CAA)
that the Milwaukee-Racine and Sheboygan, Wisconsin areas have attained
the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS).
The Milwaukee-Racine area includes Milwaukee, Ozaukee, Racine,
Washington, Waukesha, and Kenosha Counties. The Sheboygan area includes
Sheboygan County. The determinations are based on complete, quality-
assured and certified ambient air monitoring data that show that the
areas have monitored attainment of the 1997 8-hour ozone standard for
the 2006-2008 and 2007-2009 monitoring periods. Preliminary data
available for 2010 indicate that the areas continue to monitor
attainment. As a result of these determinations, the requirements for
these areas to submit attainment demonstrations and associated
reasonably available control measures (RACM), reasonable further
progress plans (RFP), contingency measures, and other State
Implementation Plan (SIP) revisions related to attainment of the
standard are suspended for as long as the areas continue to attain the
1997 8-hour ozone standard. These determinations also suspend the
requirement for EPA to promulgate attainment demonstration, RFP, and
any other attainment-related Federal Implementation Plans (FIPs) for
these areas.
DATES: This direct final rule will be effective February 14, 2011,
unless EPA receives adverse comments by January 14, 2011. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2010-0850, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (312) 692-2551.
4. Mail: John M. Mooney, Chief, Attainment Planning and Maintenance
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: John M. Mooney, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2010-0850. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at 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 Kathleen D'Agostino, Environmental
Engineer, at (312) 886-1767 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Engineer, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background for these actions?
[[Page 78165]]
II. What actions is EPA taking?
III. What is the effect of these actions?
IV. What is EPA's analysis of the relevant air quality data?
V. What are EPA's determinations and their consequences?
VI. Statutory and Executive Order Reviews
I. What is the background for these actions?
The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS
was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and
56852), the Milwaukee-Racine and Sheboygan areas were designated as
severe and serious nonattainment areas, respectively, under the 1-hour
ozone NAAQS. The Sheboygan area was subsequently redesignated to
attainment of the 1-hour standard on August 26, 1996 (61 FR 43675). The
Milwaukee-Racine area was monitoring attainment of the 1-hour ozone
standard by the end of the 2005 ozone season when, on June 15, 2005,
EPA revoked the 1-hour ozone NAAQS. However, the Milwaukee-Racine area
was still designated as nonattainment under the 1-hour ozone NAAQS.
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone
standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69
FR 23857), EPA published a final rule designating and classifying areas
under the 8-hour ozone NAAQS. These designations and classifications
became effective June 15, 2004. EPA designated as nonattainment any
area that was violating the 8-hour ozone NAAQS based on the three most
recent years of air quality data, 2001-2003.
The CAA contains two sets of provisions, subpart 1 and subpart 2,
that address planning and control requirements for nonattainment areas.
(Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for
nonattainment areas for any pollutant, including ozone, governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment areas.
Under EPA's implementation rule for the 1997 8-hour ozone standard,
69 FR 23951 (April 30, 2004), an area was classified under subpart 2
based on its 8-hour ozone design value (i.e. the 3-year average of the
annual fourth-highest daily maximum 8-hour average ozone
concentration), if it had a 1-hour design value at the time of
designation at or above 0.121 ppm (the lowest 1-hour design value in
Table 1 of subpart 2) (69 FR 23954). The Milwaukee-Racine and Sheboygan
areas were designated as subpart 2, 8-hour ozone moderate nonattainment
areas by EPA on April 30, 2004 (69 FR 23857 and 23947), based on air
quality monitoring data from 2001-2003 (69 FR 23860).
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour
ozone standard of 0.075 ppm. In May 2008, states, environmental groups,
and industry groups filed petitions with the United States Court of
Appeals for the District of Columbia Circuit for review of the 2008
ozone standards. In March 2009, the court granted EPA's request to stay
the litigation so EPA could review the standards and determine whether
they should be reconsidered. On September 16, 2009, EPA announced
reconsideration of the 2008 decision setting national standards for
ground-level ozone. The designation process for that standard has been
stayed. On January 6, 2010, EPA proposed to set the level of the
primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm,
rather than at 0.075 ppm. EPA is working to complete reconsideration of
the standard and expects thereafter to proceed with designations. The
actions addressed in today's rulemaking relate only to the 1997 8-hour
ozone standard.
II. What actions is EPA taking?
EPA is determining that the Milwaukee-Racine and Sheboygan 1997 8-
hour ozone nonattainment areas have attained the 1997 8-hour ozone
NAAQS. These determinations are based upon complete, quality-assured
and certified ambient air monitoring data for the years 2007-2009
showing that the areas have monitored attainment of the 1997 8-hour
ozone NAAQS. Today's rulemaking does not address requirements for the
2008 8-hour ozone NAAQS or any future revisions to these NAAQS.
III. What is the effect of these actions?
For the Milwaukee-Racine and Sheboygan areas, under the provisions
of 40 CFR 51.918, these determinations would: (1) Suspend the
requirements for the State to submit a SIP and/or for EPA to promulgate
a FIP for an attainment demonstration and associated RACM (including
reasonably available control technologies), RFP plan, contingency
measures, and any other planning SIPs or FIPs related to attainment of
the 1997 8-hour ozone NAAQS; (2) continue until such time, if any, that
EPA subsequently determines that the area has violated the 1997 8-hour
NAAQS; (3) be separate from, and not influence or otherwise affect, any
future designation determination or requirements for the areas based on
the revision to the 2008 8-hour ozone NAAQS or the reconsidered 8-hour
ozone NAAQS; and (4) remain in effect regardless of whether EPA
designates the area as a nonattainment area for purposes of the revised
or reconsidered 2008 8-hour ozone NAAQS.
If EPA subsequently determines, after notice-and-comment rulemaking
in the Federal Register, that the Milwaukee-Racine and/or Sheboygan
area has violated the 1997 8-hour ozone NAAQS, the basis for the
suspension of certain requirements for that area, set forth at 40 CFR
51.918, would no longer exist, and the area would thereafter have to
address pertinent requirements.
The determinations of attainment in this notice are not equivalent
to redesignations to attainment under section 107(d)(3) of the CAA
because we have not approved maintenance plans for the areas under
section 175A of the CAA, nor have we found that the areas have met the
other statutory requirements for redesignation. The designation status
of each of the areas remains nonattainment for the 1997 8-hour ozone
NAAQS until such time as EPA determines that it meets the CAA
requirements for redesignation to attainment.
IV. What is EPA's analysis of the relevant air quality data?
Whether an area is considered to be attaining the 8-hour ozone
NAAQS is determined in accordance with 40 CFR 50.10 and part 50,
Appendix I, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain the standard,
the 3-year average of the fourth-highest daily maximum 8-hour average
ozone concentrations measured at each monitor within an area over each
year must not exceed 0.08 ppm. Based on the rounding convention
described in 40 CFR part 50, appendix I, the standard is attained if
the design value is 0.084 ppm or below. The data must be collected and
quality-assured in accordance with 40 CFR part 58, and recorded in the
EPA's Air Quality System (AQS). The monitors generally should have
remained at the same location for the duration of the monitoring period
required for determining attainment.
Wisconsin has quality-assured and certified all of the ambient
monitoring data for 2006-2008 and 2007-2009 in accordance with 40 CFR
58.10, and has recorded it in the AQS database. The data meet the
completeness criteria in 40 CFR part 50, Appendix I, which require a
minimum completeness of 75% annually and 90% over each 3-year period.
Monitoring data are presented in
[[Page 78166]]
Table 1 below. Preliminary data available for 2010 are consistent with
continued attainment.
Table 1--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations
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2006 4th 2007 4th 2008 4th 2009 4th 2006-2008 2007-2009
Area County Monitor high high high high average average
(ppm) (ppm) (ppm) (ppm) (ppm) (ppm)
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Milwaukee-Racine.................... Kenosha................ Pleasant Prairie 55-059- 0.079 0.085 0.072 0.071 0.078 0.076
0019.
Milwaukee.............. 16th St. HC 55-079-0010 0.064 0.067 0.059 0.066 0.063 0.064
WDNR SERHQ 55-079-0026. 0.068 0.075 0.063 0.067 0.068 0.068
UWM-North 55-079-0041.. 0.073 0.078 0.065 0.068 0.072 0.070
Bayside 55-079-0085.... 0.073 0.083 0.069 0.072 0.075 0.074
Ozaukee................ Grafton 55-089-0008.... 0.071 0.082 0.064 0.067 0.072 0.071
Harr. Beach 55-089-0009 0.072 0.084 0.067 0.070 0.074 0.073
Racine................. Racine 55-101-0017..... 0.071 0.077 0.065 0.071 0.071 0.071
Washington............. Slinger 55-131-0009.... 0.066 0.071 0.060 0.065 0.065 0.065
Waukesha............... Waukesha 55-133-0027... 0.067 0.072 0.060 0.059 0.066 0.063
Sheboygan........................... Sheboygan.............. Kohler Andre Park 55- 0.083 0.088 0.075 0.074 0.082 0.079
117-0006.
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On the basis of this review, EPA has concluded that the Milwaukee-
Racine area and the Sheboygan area have attained the 1997 8-hour NAAQS
based on the most recent complete, quality assured 3 year period of
data: 2007-2009. In addition, preliminary monitoring data for 2010 that
are available to date indicate that these areas continue to attain the
1997 8-hour ozone NAAQS.
V. What are EPA's determinations and their consequences?
EPA is making determinations that the Milwaukee-Racine and
Sheboygan, Wisconsin areas have attained the 1997 8-hour ozone NAAQS.
The determinations are based upon complete, quality-assured and
certified ambient air monitoring data, which show that the areas have
monitored attainment of the 1997 8-hour ozone standard for the 2006-
2008 and 2007-2009 monitoring periods. Preliminary data for 2010
indicate that the areas continue to monitor attainment.
As provided in 40 CFR 51.918, the determinations of attainment for
the Milwaukee-Racine and Sheboygan areas suspend the requirements for
the State of Wisconsin to submit for these areas: an attainment
demonstration, associated RACM, RFP plan, contingency measures, and any
other planning SIPs related to attainment of the 1997 8-hour ozone
NAAQS. These determinations also suspend any requirement for EPA to
promulgate FIPs for these areas deriving from the concomitant SIP
obligations.
The attainment-related SIP and FIP obligations remain suspended for
each area for so long as it continues to attain the 1997 8-hour ozone
NAAQS or until it is redesignated for that NAAQS, at which time the
obligations end. 40 CFR 51.918.
We are publishing these actions without prior proposal because we
view them as noncontroversial and anticipate no adverse comments.
However, in the proposed rules section of this Federal Register
publication, we are publishing a separate document that will serve as
the proposal to determine that the Milwaukee and/or Sheboygan area has
attained the 1997 8-hour ozone standard if relevant adverse written
comments are filed with respect to that area. This rule will be
effective February 14, 2011 without further notice unless we receive
relevant adverse written comments by January 14, 2011. If we receive
such comments with respect to either the Milwaukee-Racine or the
Sheboygan area, we will withdraw the action with regard to that area
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the proposed action. The
EPA will not institute a second comment period. Any parties interested
in commenting on these actions should do so at this time. Please note
that if EPA receives adverse comment on a section of this rule and if
that portion may be severed from the remainder of the rule, EPA may
adopt as final those provisions of the rule that are not the subject of
an adverse comment. If we do not receive any comments, this action will
be effective February 14, 2011.
VI. Statutory and Executive Order Reviews
These actions make determinations based on air quality data, and
would, if finalized, result in the suspension of certain Federal
requirements. For that reason, these actions:
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
[[Page 78167]]
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do 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 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because a determinations of attainment is an action that affects the
status of a geographical area and does not impose any new regulatory
requirements on tribes, impact any existing sources of air pollution on
tribal lands, nor impair the maintenance of ozone national ambient air
quality standards in tribal lands. However, because there are tribal
lands located in Milwaukee County, we provided the affected tribe with
the opportunity to consult with EPA on the attainment determination.
The consultation occurred on November 15, 2010. The affected tribe
raised no concerns.
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 action 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. These actions are not ``major rules'' 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 14, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw these direct final rules and address the comment in the
proposed rulemaking. These actions may not be challenged later in
proceedings to enforce their requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: November 24, 2010.
Susan Hedman,
Regional Administrator, Region 5.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart YY--Wisconsin
0
2. Section 52.2585 is amended by adding paragraph (y) to read as
follows:
Sec. 52.2585 Control strategy: Ozone.
* * * * *
(y) Determination of attainment. EPA has determined, as of December
15, 2010 that the Milwaukee-Racine, WI and Sheboygan, WI areas have
attained the 1997 8-hour ozone standard. These determinations suspend
the requirements for these areas to submit attainment demonstrations
and associated reasonably available control measures (RACM), reasonable
further progress plans (RFP), contingency measures, and other State
Implementation Plan (SIP) revisions related to attainment of the
standard for as long as the areas continue to attain the 1997 8-hour
ozone standard. These determinations also stay the requirement for EPA
to promulgate attainment demonstration and RFP Federal Implementation
Plans (FIPs) for these areas.
[FR Doc. 2010-31339 Filed 12-14-10; 8:45 am]
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