[Federal Register Volume 76, Number 40 (Tuesday, March 1, 2011)]
[Rules and Regulations]
[Pages 11080-11082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4380]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0850; FRL-9271-9]


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: 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. Quality assured 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)

[[Page 11081]]

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. EPA published proposed and 
direct final approvals of this request on December 15, 2010. We 
received an adverse comment on our proposed rulemaking, which is 
addressed below. As a result, EPA withdrew the direct final approval on 
January 28, 2011.

DATES: This final rule is effective on March 31, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2010-0850. 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 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 did EPA propose?
II. What comments did we receive on the proposed action?
III. What actions is EPA taking?
IV. Statutory and Executive Order Reviews

I. What did EPA propose?

    On December 15, 2010, EPA published proposed (75 FR 78197) and 
direct final (75 FR 78164) determinations under the CAA that the 
Milwaukee-Racine and Sheboygan, Wisconsin areas have attained the 1997 
8-hour ozone NAAQS. EPA received an adverse comment on this action and 
withdrew the direct final approval on January 28, 2011 (76 FR 5078).

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

    EPA received an adverse comment from Midwest Environmental Defense 
Center, Inc.
    Comment: The commenter asserts that section 107(d)(3)(E) of the CAA 
prohibits redesignation of a nonattainment area to attainment unless 
five requirements are met. The commenter contends that EPA's Federal 
Register document describes air quality monitoring data in the 
Milwaukee-Racine and Sheboygan areas, but does not discuss the other 
requirements for redesignation. The commenter argues that unless all 
five criteria for redesignation are met, the Administrator cannot grant 
the redesignation.
    Response: The commenter's concerns are misplaced; the actions that 
are the subject of these rulemakings are determinations of attainment, 
and not redesignations to attainment. As EPA stated in its December 15, 
2010, direct final rule, the determinations of attainment in this 
notice are not equivalent to redesignations to attainment under section 
107(d)(3) of the CAA. While the commenter is correct that rulemakings 
redesignating an area to attainment would need to satisfy the criteria 
of section 107(d)(3)(E), EPA's actions here are not redesignations. EPA 
is not purporting here to redesignate the Milwaukee-Racine and 
Sheboygan areas, and thus we acknowledged in the direct final 
rulemaking that we were not attempting to approve maintenance plans for 
the areas as required 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, through notice and comment rulemaking, that it meets the 
CAA requirements for redesignation to attainment. Thus, EPA's 
rulemaking here addresses only the air quality issue of whether the 
areas are attaining the 1997 8-hour ozone standard. The commenter 
offered no objection to EPA's proposed determinations that the 
Milwaukee-Racine and Sheboygan nonattainment areas are attaining that 
standard.

III. What actions is EPA taking?

    EPA is making final 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. Quality assured data for 2010 
available to date 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.

IV. 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.);
     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

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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 May 2, 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. 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: February 14, 2011.
Susan Hedman,
Regional Administrator, Region 5.

    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 March 1, 
2011 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. 2011-4380 Filed 2-28-11; 8:45 am]
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