[Federal Register Volume 73, Number 130 (Monday, July 7, 2008)]
[Proposed Rules]
[Pages 38353-38356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15331]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1044; FRL-8688-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Illinois and Indiana; Finding of Attainment for 1-Hour Ozone for the 
Chicago-Gary-Lake County, IL-IN Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On January 30, 2007, the Illinois Environmental Protection 
Agency (IEPA) requested that EPA find that the Chicago ozone 
nonattainment area, located within the Chicago-Gary-Lake County, 
Illinois-Indiana (IL-IN) area, has attained the revoked 1-hour ozone 
National Ambient Air Quality Standard (NAAQS). On October 25, 2007, the 
Indiana Department of Environmental Management (IDEM) requested that 
EPA find that Lake and Porter Counties, also within the Chicago-Gary-
Lake County, IL-IN area, have attained the revoked 1-hour ozone NAAQS. 
After review of these submissions, EPA is proposing to make such 
findings.

DATES: Comments must be received on or before August 6, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1044, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 886-5824.
    4. Mail: John Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John Mooney, Chief, Criteria Pollutant 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-
2007-1044. 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 a 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 http://

[[Page 38354]]

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 
in http://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 legal 
holidays. We recommend that you telephone Gilberto Alvarez, 
Environmental Scientist, at (312) 886-6143 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Gilberto Alvarez, Environmental 
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6143, [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?
II. What Is the Impact of a December 22, 2006 United States Court of 
Appeals Decision Regarding EPA's 8-Hour Phase 1 Ozone Implementation 
Rule on This Proposed Rule?
III. Attainment Finding
IV. What Action Is EPA Taking?
V. Statutory and Executive Order Reviews

I. What Is the Background for These Actions?

    Under section 107(d)(1)(C) of the Clean Air Act (CAA), the Chicago-
Gary-Lake County, IL-IN area was designated nonattainment for the 1-
hour ozone NAAQS by operation of law upon enactment of the 1990 CAA 
amendments. Under section 181(a) of the CAA, each ozone area designated 
nonattainment under section 107(d) was also classified by operation of 
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe-15,'' 
``severe-17'', or ``extreme,'' depending on the severity of the area's 
air quality problem and the number of years to reach attainment from 
the 1990 CAA amendments. These nonattainment designations and 
classifications were codified in title 40 of the Code of Federal 
Regulations (CFR) part 81 (see 56 FR 56994, November 6, 1991).
    The ozone design value for an area, which characterizes the 
severity of the air quality problem, is represented by the highest 
ozone design value at any of the individual ozone monitoring sites in 
the area. Table 1 in section 181(a) of the CAA provides the design 
value ranges for each nonattainment classification. Ozone nonattainment 
areas with design values between 0.190 parts per million (ppm) and 
0.280 ppm for the three-year period, 1987-1989, were classified as 
severe-17. Because the Chicago-Gary-Lake County, IL-IN area's 1988 
ozone design value fell between 0.190 and 0.280 ppm, this area was 
classified as severe-17 nonattainment for the 1-hour ozone NAAQS. Under 
section 182(c) of the CAA, states containing areas that were classified 
as severe-17 nonattainment were required to submit State Implementation 
Plans (SIPs) to provide for certain emission controls, to show progress 
toward attainment, and to provide for attainment of the ozone NAAQS as 
expeditiously as practicable, but no later than November 15, 2007.
    In 1997, EPA adopted a new 8-hour ozone NAAQS. The implementation 
rule for the standard, referred to as the Phase 1 Implementation Rule, 
was published on April 30, 2004 (69 FR 23951).

II. What Is the Impact of a December 22, 2006 United States Court of 
Appeals Decision Regarding EPA's 8-Hour Phase 1 Ozone Implementation 
Rule on This Proposed Rule?

    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit (the Court) vacated the Phase 1 Implementation Rule. 
South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 
2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. 
EPA, Docket No. 04-1201, in response to several petitions for 
rehearing, the Court clarified that the Phase 1 Rule was vacated only 
with regard to those parts of the rule that had been successfully 
challenged. With respect to the challenges to the anti-backsliding 
provisions of the rule, the Court vacated three provisions that would 
have allowed States to remove from the SIP or to not adopt three 1-hour 
obligations once the 1-hour ozone NAAQS was revoked to transition to 
the implementation of the 8-hour ozone NAAQS: (1) Nonattainment area 
new source review (NSR) requirements based on an area's 1-hour 
nonattainment classification (a separate NSR policy is being 
developed); (2) section 185 penalty fees for 1-hour severe or extreme 
nonattainment areas that fail to attain the 1-hour ozone NAAQS by the 
1-hour attainment date; and (3) measures to be implemented pursuant to 
section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an 
area not making reasonable further progress toward attainment of the 1-
hour ozone NAAQS or for failure to attain the 1-hour ozone NAAQS. The 
Court clarified that 1-hour conformity determinations are not required 
for anti-backsliding purposes.

III. Attainment Finding

    In 1991, the Chicago-Gary-Lake County, IL-IN area was classified as 
severe-17 for the 1-hour ozone NAAQS. The Illinois portion of the area 
consists of the following counties: Cook; Du Page; Grundy (part) [Aux 
Stable Township and Goose Lake Township]; Kane; Kendall (part) [Oswego 
Township]; Lake; McHenry; and Will. The Indiana portion of the area 
consists of Lake and Porter Counties.
    An area is considered to have attained the 1-hour ozone NAAQS if 
there are no violations of the standard, as determined in accordance 
with the regulation codified at 40 CFR 50.9, based on three consecutive 
calendar years of complete, quality-assured monitoring data. A 
violation occurs when the ozone air quality monitoring data show 
greater than one (1.0) average expected exceedance per year at any site 
in the area. An exceedance occurs when the maximum hourly ozone 
concentration during any day exceeds 0.124 ppm. The data should be 
collected and quality-assured in accordance with 40 CFR part 58, and 
recorded in the Air Quality System so that they are available to the 
public for review.
    The finding of attainment for the Chicago-Gary-Lake County, IL-IN 
area is based on an analysis of 1-hour ozone air quality data from 
2004-2006. Table 1 below summarizes these data.

[[Page 38355]]



 Table 1.--1-Hour Ozone Expected Exceedances at Monitoring Sites in the Chicago-Gary-Lake County, IL-IN Area Including the Chiwaukee Prairie Monitoring
                                                                          Site
                                                                       [2004-2006]
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                                                                                          Number of 2004  Number of 2005  Number of 2006    3-year avg.
              Site code                         County                     Site             exceedances     exceedances     exceedances     exceedances
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                                                                        ILLINOIS
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17-031-0001..........................  Cook....................  Alsip..................             0.0             1.0             0.0             0.3
17-031-0076..........................  Cook....................  Chicago-Com Ed.........             0.0             0.0             0.0             0.0
17-031-0072..........................  Cook....................  Chicago-Jardine........             0.0             0.0             0.0             0.0
17-031-0032..........................  Cook....................  Chicago-SWFP...........             0.0             1.0             0.0             0.3
17-031-1003..........................  Cook....................  Chicago-Taft...........             0.0             0.0             0.0             0.0
17-031-0064..........................  Cook....................  Chicago-University.....             0.0             0.0             0.0             0.0
17-031-4002..........................  Cook....................  Cicero.................             0.0             0.0             0.0             0.0
17-031-4007..........................  Cook....................  Des Plaines............             0.0             0.0             0.0             0.0
17-031-7002..........................  Cook....................  Evanston...............             0.0             0.0             0.0             0.0
17-031-1601..........................  Cook....................  Lemont.................             0.0             0.0             0.0             0.0
17-031-4201..........................  Cook....................  Northbrook.............             0.0             0.0             0.0             0.0
17-043-6001..........................  DuPage..................  Lisle..................             0.0             0.0             0.0             0.0
17-089-0005..........................  Kane....................  Elgin..................             0.0             0.0             0.0             0.0
17-097-1002..........................  Lake....................  Waukegan...............             0.0             0.0             0.0             0.0
17-097-1007..........................  Lake....................  Zion...................             0.0             0.0             0.0             0.0
17-111-0001..........................  McHenry.................  Cary...................             0.0             0.0             0.0             0.0
17-197-1011..........................  Will....................  Braidwood..............             0.0             0.0             0.0             0.0
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                                                                         INDIANA
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18-089-0022..........................  Lake....................  Gary...................             0.0             1.0             0.0             0.3
18-089-2008..........................  Lake....................  Hammond................             0.0             0.0             0.0             0.0
18-089-0030..........................  Lake....................  Whiting................             0.0             0.0             0.0             0.0
18-127-0024..........................  Porter..................  Ogden Dunes............             0.0             1.0             0.0             0.3
18-127-0026..........................  Porter..................  Valparaiso.............             0.0             0.0             0.0             0.0
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                                                                        WISCONSIN
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55-059-0019..........................  Kenosha.................  Chiwaukee Prairie......             0.0             0.0             0.0             0.0
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    Based on ambient ozone season (April-October) 1-hour ozone air 
quality data for the years 2004, 2005 and 2006, EPA proposes to find 
that the Chicago-Gary-Lake County, IL-IN area attained the 1-hour ozone 
NAAQS prior to its attainment deadline of November 15, 2007. Note that 
the analysis of the Chicago-Gary-Lake County, IL-IN area also reflects 
monitoring data from a monitoring site at the Chiwaukee Prairie site in 
Wisconsin. Although this particular site is outside of the Chicago-
Gary-Lake County, IL-IN area, it is a critical site toward 
demonstrating air quality impacts for the area because it is a primary 
design value site for measuring peak ozone levels primarily produced by 
ozone precursors emitted in the subject area. This site demonstrated 
that the subject area attained of the 1-hour ozone NAAQS during the 
2004-2006 period.

IV. What Action Is EPA Taking?

    EPA is proposing to determine that the Chicago-Gary-Lake County, 
IL-IN area attained the 1-hour ozone NAAQS by its attainment date, 
November 15, 2007. Under Section 181(b)(2) of the CAA, EPA must 
determine whether ozone nonattainment areas have attained the ozone 
NAAQS by their attainment date. This determination must be based on the 
area's design value as of the attainment date.\1\
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    \1\ EPA remains obligated under section 181(b)(2) to determine 
whether an area attained the 1-hour ozone NAAQS by its attainment 
date. However, after the revocation of the 1-hour ozone NAAQS, EPA 
is no longer obligated to reclassify an area to a higher 
classification for the 1-hour ozone NAAQS based upon a determination 
that the area failed to attain the 1-hour ozone NAAQS by the area's 
attainment date for the 1-hour ozone NAAQS. (40 CFR 
51.905(e)(2)(i)(B)). Thus, even if we make a finding that an area 
has failed to attain the 1-hour ozone NAAQS by its attainment date, 
the area would not be reclassified to a higher classification.
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    Because the area has attained the 1-hour ozone NAAQS by the 
applicable attainment date, it is not subject to the requirement to 
implement contingency measures for failure to attain the standard by 
its attainment date. Since the area has met its attainment deadline, 
even if the area subsequently lapses into nonattainment, it would not 
be required to implement the contingency measures for failure to attain 
the standard by its attainment date.
    If a severe or extreme 1-hour ozone nonattainment area attains by 
its attainment date, it is not required to implement the section 185 
penalty fees program. Section 185(a) of the CAA states that a severe or 
extreme ozone nonattainment must implement a program to impose fees on 
certain stationary sources of air pollution if the area ``has failed to 
attain the national primary ambient air quality standard for ozone by 
the applicable attainment date.'' Consequently, if such an area has 
attained the standard as of its applicable attainment date, even if it 
subsequently lapses into nonattainment, the area would not be required 
to implement the section 185 penalty fees program. Because EPA is 
proposing to find that the area has attained the 1-hour ozone NAAQS by 
its applicable attainment date, we also propose to find that the area 
is not subject to the imposition of the section 185 penalty fees.
    Please note that Indiana has made a request for a clean data 
finding.\2\ The

[[Page 38356]]

action we are proposing today, however, is a determination of 
attainment, which differs from a clean data finding. A clean data 
finding results in the suspension of planning requirements for ozone, 
such as attainment demonstrations and rate-of-progress plans. Indiana 
has already complied with such requirements for the 1-hour ozone NAAQS 
in Lake and Porter counties and EPA approved them on July 18, 1997 (62 
FR 38457), January 16, 2000 (65 FR 4126), and November 13, 2001 (66 FR 
56944). Therefore, EPA is not making a clean data finding in this 
proposed rule because the 1-hour ozone NAAQS was revoked for this 
nonattainment area effective June 15, 2005. See 40 CFR 81.315.
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    \2\ See U.S. EPA Memorandum from John Seitz, ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard'' (May 10, 1995).
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V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is 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.);
     Does 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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is 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
     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 (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 the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone.

    Dated: June 26, 2008.
Bharat Mathur,
Acting Regional Administrator, Region 5.
 [FR Doc. E8-15331 Filed 7-3-08; 8:45 am]
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