[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Rules and Regulations]
[Pages 18641-18644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9364]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2008-0683; FRL-8895-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Finding of Attainment for 1-Hour Ozone for the Milwaukee-
Racine, WI Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a July 28, 2008, request from the Wisconsin 
Department of Natural Resources (WDNR) that EPA find that the 
Milwaukee-Racine, Wisconsin (WI) nonattainment area has attained the 
revoked 1-hour ozone National Ambient Air Quality Standard (NAAQS).

DATES: This direct final rule will be effective June 23, 2009, unless 
EPA receives adverse comments by May 26, 2009. 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-2008-0683, 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) 692-2551.
    4. Mail: John M. 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 M. 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-
2008-0683. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or e-mail. The http://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 http://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://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 federal 
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), 
U.S. 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 EPA Approving?
II. What Is the Background for This Action?
III. What Is the Impact of a December 22, 2006, United States Court 
of Appeals Decision Regarding EPA's Phase 1 Ozone Implementation 
Rule on This Rule?
IV. Attainment Finding
V. What Action Is EPA Taking?
VI. Statutory and Executive Order Reviews

I. What Is EPA Approving?

    EPA is approving a July 28, 2008, request from WDNR that EPA find 
that the Milwaukee-Racine, WI nonattainment area attained the revoked 
1-hour ozone NAAQS.

II. What Is the Background for This Action?

    Under section 107(d)(1)(C) of the Clean Air Act (CAA), the 
Milwaukee-Racine, WI 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 needed 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 Milwaukee-Racine, WI 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

[[Page 18642]]

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). More detail on this rule 
and how it pertains to this action is provided below.

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

    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit 
(the court) vacated the Phase 1 Implementation Rule for the 1997 8-hour 
ozone NAAQS (69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 
2006). On June 8, 2007, 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. Id., 
Docket No. 04-1201. 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; (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.
    The provisions in 40 CFR 51.905(a)-(c) concerning anti-backsliding 
remain in effect and areas must continue to meet those requirements. 
However, the three provisions noted above, which are specified in 40 
CFR 51.905(e), were vacated by the court. As a result, states must 
continue to meet: (1) The obligations for 1-hour NSR; (2) 1-hour 
contingency measures; and, (3) for severe and extreme areas, the 
obligations related to a section 185 fee program. Currently, EPA is 
developing two proposed rules to address the court's vacatur and remand 
with respect to these three requirements. We address below how the 1-
hour obligations that currently continue to apply under EPA's anti-
backsliding rule (as interpreted by the court) apply where EPA has made 
a determination that the area attained the 1-hour ozone NAAQS by its 
attainment date.
    Therefore, of the three provisions vacated by the court, today's 
action addresses two of them using existing policy: Section 185 penalty 
fees and contingency measures. The third issue, NSR requirements, will 
be addressed in a separate agency rulemaking which is currently under 
development.

IV. Attainment Finding

    In 1991, the Milwaukee-Racine, WI area was classified as severe-17 
for the 1-hour ozone NAAQS. The area consists of the following 
counties: Milwaukee, Waukesha, Washington, Ozaukee, Kenosha, and 
Racine.
    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 Milwaukee-Racine, WI area is 
based on an analysis of 1-hour ozone air quality data from three 
separate three-year periods including 2003-2005, 2004-2006, and 2005-
2007. Table 1 below summarizes these data.

                       Table 1--1-Hour Ozone Violation Assessment at Monitoring Sites in the Milwaukee-Racine, WI Area (2003-2007)
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                                                                                         Number 2003- Number 2004- Number 2005-
              Site code                         County                    Site               2005         2006         2007           In violation?
                                                                                         exceedances  exceedances  exceedances
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55-059-0019..........................  Kenosha................  Pleasant Prairie.......            0            0            0  No.
55-079-0010..........................  Milwaukee..............  16th St Health Center..        \a\ 0            0            0  No.
55-079-0026..........................  Milwaukee..............  SER-HQ.................            1            1            1  No.
55-079-0041..........................  Milwaukee..............  UWM North..............            2            2            2  No.
55-079-0044..........................  Milwaukee..............  Appleton Avenue........            0        (\b\)        (\b\)  No.
55-079-0085..........................  Milwaukee..............  Bayside................            2            2            2  No.
55-089-0008..........................  Ozaukee................  Grafton................            1            1            1  No.
55-089-0009..........................  Ozaukee................  Harrington Beach.......            2            1            1  No.
55-101-0017..........................  Racine.................  Racine.................            0            0            0  No.
55-131-0009..........................  Washington.............  Slinger................            0            0            0  No.
55-133-0017..........................  Waukesha...............  Carroll College........            0        (\c\)        (\c\)  No.
55-133-0027..........................  Waukesha...............  Cleveland Avenue.......        (\d\)            0            0  No.
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Notes:
\a\ Data completeness at 55-079-0010 in 2003 was 62%. This does not meet US EPA's 75% completeness criterion. Hence, the 3rd high ozone value was used
  to determine the design value for 2003-2005. That value is 0.097 ppm.
\b\ The ozone monitor at Appleton Avenue in Milwaukee (55-079-0044) was removed from service after the 2005 monitoring season. Therefore a violation
  determination can be made only for the period 2003-2005.
\c\ The Carroll College site (55-133-0017) was shut down after the 2005 ozone monitoring season because the building where the monitor was located was
  razed.
\d\ Ozone monitoring at the Cleveland Avenue site (55-133-0027) began in 2004. A violation assessment cannot be completed for 2003-2005 due to the lack
  of data.


[[Page 18643]]

    Based on ambient ozone season (April-October) 1-hour ozone air 
quality data for these three-year periods, EPA is approving a request 
to find that the Milwaukee-Racine, WI area attained the 1-hour ozone 
NAAQS prior to its attainment deadline of November 15, 2007. An 
analysis of preliminary, non-quality assured data for 2008 indicates 
that the area continues to attain the 1-hour ozone NAAQS.

V. What Action Is EPA Taking?

    EPA is approving a July 28, 2008 request from WDNR that EPA find 
that the Milwaukee-Racine, WI nonattainment area attained the revoked 
1-hour ozone NAAQS. 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 section 
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 would not be required to implement the section 
185 penalty fees program. Section 185(a) of the CAA states that a 
severe or extreme ozone nonattainment area 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 by 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 finds that the area has attained the 1-hour ozone NAAQS by 
its applicable attainment date, we also find that the area is not 
subject to the imposition of the section 185 penalty fees.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment 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 approve the state plan if relevant adverse 
written comments are filed. This rule will be effective June 23, 2009 
without further notice unless we receive relevant adverse written 
comments by May 26, 2009. If we receive such comments, we will withdraw 
this action 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 this action should do so at 
this time. If we do not receive any comments, this action will be 
effective June 23, 2009.

VI. 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.
    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. 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 June 23, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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

[[Page 18644]]

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 this direct final rule and address the comment in the proposed 
rulemaking. 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, Ozone.

    Dated: April 9, 2009.
Bharat Mathur,
Acting 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 (v) to read as 
follows:


Sec.  52.2585  Control Strategy: Ozone.

* * * * *
    (v) On July 28, 2008, the Wisconsin Department of Natural Resources 
requested that EPA find that the Milwaukee-Racine, WI nonattainment 
area, attained the revoked 1-hour ozone National Ambient Air Quality 
Standard (NAAQS). After review of this submission, EPA approves this 
request.

[FR Doc. E9-9364 Filed 4-23-09; 8:45 am]
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