[Federal Register Volume 77, Number 112 (Monday, June 11, 2012)]
[Rules and Regulations]
[Pages 34221-34228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14097]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2008-0476; FRL 9682-2]
RIN 2060-AR56


Air Quality Designations for the 2008 Ozone National Ambient Air 
Quality Standards for Several Counties in Illinois, Indiana, and 
Wisconsin; Corrections to Inadvertent Errors in Prior Designations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule completes the initial air quality designations for 
the 2008 primary and secondary national ambient air quality standards 
(NAAQS) for ozone. On April 30, 2012, the EPA promulgated the initial 
ozone air quality designations for all areas in the United States 
except for 12 counties in Illinois, Indiana and Wisconsin, which the 
EPA was still evaluating. This action designates those counties. The 
EPA is designating all or parts of 11 counties as the Chicago-
Naperville, IL-IN-WI nonattainment area. The EPA is designating the 
remaining county and parts of counties as unclassifiable/attainment. 
The Chicago-Naperville, IL-IN-WI nonattainment area is being classified 
by operation of law as a Marginal area according to the severity of its 
air quality problem. This rule also corrects inadvertent errors in the 
regulatory text regarding the designation of three areas in the ozone 
designation rule signed on April 30, 2012.

DATES: The effective date of this rule is July 20, 2012.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2008-0476. All documents in the docket are 
listed in the index at http://www.regulations.gov. Although listed in 
the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in the docket or in hard copy at the 
Docket, EPA/DC, EPA West,

[[Page 34222]]

Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Office 
of Air and Radiation Docket and Information Center is (202) 566-1742.
    In addition, the EPA has established a Web site for this rulemaking 
at: http://www.epa.gov/ozonedesignations. The Web site includes the 
EPA's final state and tribal designations, as well as state initial 
recommendation letters, the EPA modification letters, technical support 
documents, responses to comments and other related technical 
information.

FOR FURTHER INFORMATION CONTACT: Carla Oldham, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, Mail Code 
C539-04, Research Triangle Park, NC 27711, phone number (919) 541-3347 
or by email at: [email protected].
    Regional Office contact: Edward Doty, phone number (312) 886-6057 
or by email at: [email protected].

SUPPLEMENTARY INFORMATION: The public may inspect the rule and state-
specific technical support information at the following location:

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              Regional office                      Affected states
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John Mooney, Chief, Air Programs Branch,    Illinois, Indiana, and
 EPA Region 5, 77 West Jackson Street,       Wisconsin.
 Chicago, IL 60604, (312) 886-6043.
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Table of Contents

    The following is an outline of the preamble.

I. Preamble Glossary of Terms and Acronyms
II. What is the purpose of this action?
III. What is ozone and how is it formed?
IV. What are the 2008 ozone NAAQS and the health and welfare 
concerns they address?
V. What are the CAA requirements for air quality designations?
VI. What is the chronology for the initial air quality designation 
rules and what guidance did the EPA provide?
VII. What air quality data has the EPA used to designate these areas 
for the 2008 ozone NAAQS?
VIII. What are the ozone air quality classifications?
IX. Can states request that areas within 5 percent of the upper or 
lower limit of a classification threshold be reclassified?
X. Where can I find information forming the basis for this rule and 
exchanges between EPA, states, and tribes related to this rule?
XI. What are the corrections to inadvertent errors in the 
designations for three areas in the April 30, 2012, designations 
rule?
XII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulations and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

    The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act
CAA Clean Air Act
CFR Code of Federal Regulations
D.C. District of Columbia
EPA Environmental Protection Agency
FR Federal Register
NAAQS National Ambient Air Quality Standards
NOX Nitrogen Oxides
NTTAA National Technology Transfer and Advancement Act
PPM Parts per million
RFA Regulatory Flexibility Act
UMRA Unfunded Mandate Reform Act of 1995
TAR Tribal Authority Rule
U.S. United States
U.S.C. United States Code
VCS Voluntary Consensus Standards
VOC Volatile Organic Compounds

II. What is the purpose of this action?

    The purpose of this action is to promulgate initial air quality 
designations for 12 counties in Illinois, Indiana and Wisconsin for the 
2008 primary and secondary NAAQS for ozone, in accordance with the 
requirements of Clean Air Act (CAA) section 107(d). Whenever the EPA 
establishes a new or revised NAAQS, section 107(d) requires the EPA to 
designate all areas of the country as to whether the areas are meeting 
or not meeting the new or revised NAAQS. In an action signed on April 
30, 2012, the EPA designated all other areas of the country for the 
2008 ozone NAAQS (77 FR 30088; May 21, 2012). At that time, the EPA did 
not designate 12 counties in Illinois, Indiana and Wisconsin because 
the EPA was still evaluating them for inclusion in the Chicago-
Naperville, IL-IN-WI nonattainment area. The EPA has now completed that 
evaluation. The EPA is designating eight of the counties and parts of 
three of the counties as the Chicago-Naperville, IL-IN-WI nonattainment 
area. The EPA is designating the remaining county and parts of counties 
as unclassifiable/attainment. The Chicago-Naperville, IL-IN-WI 
nonattainment area is also being classified by operation of law as a 
Marginal area according to the severity of its air quality problem. The 
designation for each of these 12 counties is provided in the tables at 
the end of this notice (amendments to 40 CFR 81.314, 315, and 350). For 
areas designated as nonattainment, the tables include the area's 
classification.
    State areas designated as nonattainment are subject to planning and 
emission reduction requirements as specified in the CAA. Requirements 
vary according to an area's classification. The EPA will be proposing 
shortly an implementation rule to assist states in the development of 
state implementation plans for attaining the ozone standards.
    This rule also corrects inadvertent errors in the regulatory text 
regarding the designation of three areas in the ozone designation rule 
signed on April 30, 2012. The affected areas are the Kentucky portion 
of the Cincinnati, OH-KY-IN nonattainment area, the partial Kenton 
County, KY unclassifiable/attainment area, and Crittenden County, AR.

III. What is ozone and how is it formed?

    Ground-level ozone, O3, is a gas that is formed by the 
reaction of volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) in the atmosphere in the presence of sunlight. These 
precursor emissions are emitted by many types of pollution sources, 
including power plants and industrial emissions sources, on-road and 
off-road motor vehicles and engines, and smaller sources, collectively 
referred to as area sources. Ozone is predominately a summertime air 
pollutant. However, high ozone concentrations have also been observed 
in cold months, where a few high elevation areas in the Western U.S. 
have experienced high levels of local VOC and NOX emissions 
that have formed ozone when snow is on the ground and temperatures are 
near or below freezing. Ozone and ozone precursors can be transported 
to an area from sources in nearby areas or from

[[Page 34223]]

sources located hundreds of miles away. For purposes of determining 
ozone nonattainment area boundaries, the CAA requires the EPA to 
include areas that contribute to nearby violations of the NAAQS.

IV. What are the 2008 ozone NAAQS and the health and welfare concerns 
they address?

    On March 12, 2008, the EPA revised both the primary and secondary 
NAAQS for ozone to a level of 0.075 parts per million (ppm) (annual 
fourth-highest daily maximum 8-hour average concentration, averaged 
over 3 years) to provide increased protection of public health and the 
environment.\1\ The 2008 ozone NAAQS retain the same general form and 
averaging time as the 0.08 ppm NAAQS set in 1997, but are set at a more 
protective level.
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    \1\ See 73 FR 16436; March 27, 2008. For a detailed explanation 
of the calculation of the 3-year 8-hour average, see 40 CFR part 50, 
Appendix I.
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    Ozone exposure has been associated with increased susceptibility to 
respiratory infections, medication use by asthmatics, doctor visits, 
and emergency department visits and hospital admissions for individuals 
with respiratory disease. Ozone exposure may also contribute to 
premature death, especially in people with heart and lung disease. The 
secondary ozone standard was revised to protect against adverse welfare 
effects including impacts to sensitive vegetation and forested 
ecosystems.

V. What are the CAA requirements for air quality designations?

    When the EPA promulgates a new or revised NAAQS, the EPA is 
required to designate areas as nonattainment, attainment, or 
unclassifiable, pursuant to section 107(d)(1) of the CAA. The CAA 
requires the EPA to complete the initial area designation process 
within 2 years of promulgating the NAAQS. However, if the Administrator 
has insufficient information to make these designations within that 
time frame, the EPA has the authority to extend the deadline for 
designation decisions by up to 1 additional year.
    By not later than 1 year after the promulgation of a new or revised 
NAAQS, each state governor is required to recommend air quality 
designations, including the appropriate boundaries for areas, to the 
EPA. The EPA reviews those state recommendations and is authorized to 
make any modifications the Administrator deems necessary. The statute 
does not define the term ``necessary,'' but the EPA interprets this to 
authorize the Administrator to modify designations that did not meet 
the statutory requirements or were otherwise inconsistent with the 
facts or analysis deemed appropriate by the EPA. If the EPA intends to 
make any modifications to a state's initial recommendation, the EPA is 
required to notify the state of any such intended modifications to its 
recommendation not less than 120 days prior to the EPA's promulgation 
of the final designation. These notifications are commonly known as the 
``120-day letters.'' If the state does not agree with the EPA's 
intended modification, it then has an opportunity to respond to the EPA 
to demonstrate why it believes the modification proposed by the EPA is 
inappropriate. Even if a state fails to provide any recommendation for 
an area, in whole or in part, the EPA still must promulgate a 
designation that the Administrator deems appropriate.
    Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as, 
``any area that does not meet (or that contributes to ambient air 
quality in a nearby area that does not meet) the national primary or 
secondary ambient air quality standard for the pollutant.'' If an area 
meets either prong of this definition, then the EPA is obligated to 
designate the area as ``nonattainment.'' Section 107(d)(1)(A)(iii) 
provides that any area that the EPA cannot designate on the basis of 
available information as meeting or not meeting the standards should be 
designated as ``unclassifiable.'' Historically for ozone, the EPA 
designates the remaining areas that do not meet the definition of a 
nonattainment area or an unclassifiable area as ``unclassifiable/
attainment'' indicating that the areas either have attaining air 
quality monitoring data or that air quality information is not 
available because the areas are not monitored, and the EPA has not 
determined that the areas contribute to a violation in a nearby area.
    The EPA believes that section 107(d) provides the agency with 
discretion to determine how best to interpret the terms ``contributes 
to'' and ``nearby'' in the definition of a nonattainment area for a new 
or revised NAAQS, given considerations such as the nature of a specific 
pollutant, the types of sources that may contribute to violations, the 
form of the standards for the pollutant, and other relevant 
information. In particular, the EPA believes that the statute does not 
require the agency to establish bright line tests or thresholds for 
what constitutes ``contribution'' or ``nearby'' for purposes of 
designations.\2\ Similarly, the EPA believes that the statute permits 
the EPA to determine the most appropriate application of the term 
``area'' for a particular NAAQS.
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    \2\ This view was confirmed in Catawba County v. EPA, 571 F.3d 
20 (D.C. Cir. 2009).
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    Section 301(d) of the CAA authorizes the EPA to approve eligible 
Indian tribes to implement provisions of the CAA on Indian reservations 
and other areas within the tribes' jurisdiction. The Tribal Authority 
Rule (TAR) (40 CFR Part 49), which implements section 301(d) of the 
CAA, sets forth the criteria and process for tribes to apply to the EPA 
for eligibility to administer CAA programs. The designations process 
contained in section 107(d) of the CAA is included among those 
provisions determined to be appropriate by the EPA for treatment of 
tribes in the same manner as states. Under the TAR, tribes generally 
are not subject to the same submission schedules imposed by the CAA on 
states. As authorized by the TAR, tribes may seek eligibility to submit 
designation recommendations to the EPA.

VI. What is the chronology for the initial air quality designation 
rules and what guidance did the EPA provide?

    As discussed above, in 2008 the EPA revised both the primary and 
secondary NAAQS for ozone. On December 4, 2008, the EPA issued guidance 
for states and tribal agencies to use in developing area designation 
recommendations for the 2008 ozone NAAQS. (See memorandum from Robert 
J. Meyers, Principal Deputy Assistant Administrator, to Regional 
Administrators, Regions I-X, titled, ``Area Designations for the 2008 
Revised Ozone National Ambient Air Quality Standards.'') The guidance 
provided the anticipated timeline for designations and identified 
important factors that the EPA recommended states and tribes consider 
in making their recommendations. These factors include air quality 
data, emissions data, traffic and commuting patterns, growth rates and 
patterns, meteorology, geography/topography, and jurisdictional 
boundaries. In the guidance, the EPA asked that states and tribes 
submit their designation recommendations, including appropriate area 
boundaries, to the EPA by March 12, 2009. Later in the process, the EPA 
issued two new guidance memoranda related to designating areas of 
Indian county.\3\

[[Page 34224]]

(There are no areas of Indian country affected by this action.)
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    \3\ See December 20, 2011, memorandum from Stephen D. Page, 
Director, Office of Air Quality Planning and Standards, to Regional 
Air Directors, Regions I-X, titled, ``Policy for Establishing 
Separate Air Quality Designations for Areas of Indian Country,'' and 
December 20, 2011, memorandum from Stephen D. Page, Director, Office 
of Air Quality Planning and Standards, to Regional Air Directors, 
Regions I-X, titled, ``Guidance to Regions for Working with Tribes 
during the National Ambient Air Quality Standards (NAAQS) 
Designations Process.''
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    Under the initial schedule, the EPA intended to complete the 
initial designations for the 2008 ozone NAAQS on a 2-year schedule, by 
March 12, 2010. On September 16, 2009, the EPA announced that it would 
initiate a rulemaking to reconsider the 2008 ozone NAAQS for various 
reasons, including the fact that the 0.075 ppm level fell outside of 
the range recommended by the Clean Air Scientific Advisory Committee, 
the independent group of scientists that provides advice to the EPA 
Administrator on the technical bases for the EPA's NAAQS. The EPA 
signed the proposed reconsideration on January 6, 2010 (75 FR 2938; 
January 19, 2010). Because of the significant uncertainty the ozone 
NAAQS reconsideration created regarding the continued applicability of 
the 2008 NAAQS, the EPA determined there was insufficient information 
to designate areas within 2 years of promulgation of the NAAQS. 
Therefore, the EPA used its authority under CAA section 107(d)(1)(B) to 
extend the deadline for designating areas by 1 year, until March 12, 
2011 (75 FR 2936; January 19, 2010). The EPA has not taken final action 
on the proposed reconsideration; thus, the current NAAQS for ozone 
remains at 0.075 ppm, as established in 2008.
    After the March 12, 2011, designation deadline passed, WildEarth 
Guardians and Elizabeth Crowe (WildEarth Guardians) filed a lawsuit 
seeking to compel the EPA to take action to designate areas for the 
2008 ozone NAAQS. WildEarth Guardians and Elizabeth Crowe v. Jackson 
(D. Ariz. 11-CV-01661). The EPA and WildEarth Guardians settled the 
case by entering into a consent decree that requires the EPA 
Administrator to sign a final rule designating areas for the 2008 ozone 
NAAQS by May 31, 2012.
    On September 22, 2011, the EPA issued a memorandum to clarify for 
state and local agencies the status of the 2008 ozone NAAQS and to 
outline plans for moving forward to implement them. The EPA indicated 
that it would proceed with initial area designations for the 2008 
NAAQS, and planned to use the recommendations states made in 2009 as 
updated by the most current, certified air quality data from 2008-2010. 
While the EPA did not request that states submit updated designation 
recommendations, the EPA provided the opportunity for states to do so. 
Several states chose to update their recommendations, and some 
requested that the EPA base designations for their areas on certified 
air quality data from 2009-2011, and committed to certify the 2011 data 
earlier than the May 1 deadline for annual air monitoring certification 
under 40 CFR 58.15(a)(2) so that the EPA would have sufficient time to 
consider the data in making decisions on designations and nonattainment 
area boundaries. The states of Illinois, Indiana, and Wisconsin did not 
submit updated designation recommendations.
    On or about December 9, 2011, the EPA sent letters to Governors and 
Tribal leaders notifying them of the EPA's preliminary response to 
their designation recommendations and to inform them of the EPA's 
approach for completing the designations for the 2008 ozone NAAQS. The 
EPA requested that states submit any additional information that they 
wanted the EPA to consider by February 29, 2011, including any 
certified 2011 air quality monitoring data. Two days prior to those 
letters, on December 7, 2011, Illinois sent a letter to the EPA 
submitting the state's 2011 certified air quality monitoring data for 
consideration in the designation process. The data, when considered 
with data from the two previous years (2009 and 2010), indicated a 
violation of the 2008 ozone NAAQS at a monitor in Lake County, Illinois 
(which is in the Chicago-Naperville-Michigan City, IL-IN-WI 
consolidated statistical area). Given the timing of Illinois' 
submission of the certified data, the EPA was not able to consider the 
information in the December 9, 2011, letters. After reviewing the 2011 
air quality data and assessing contributions to nonattainment from 
nearby areas, the EPA sent letters on January 31, 2012, notifying 
Illinois, Indiana, and Wisconsin that it intended to designate certain 
counties (or parts thereof), identified in those letters, as 
nonattainment for the 2008 ozone NAAQS. On April 30, 2012, the EPA 
Administrator signed a final rule designating almost all areas in the 
United States, including Indian country. At that time, the EPA did not 
designate the Illinois, Indiana, and Wisconsin counties identified in 
the January 31, 2011, notification letters because the necessary 120-
day period had not yet elapsed following the January letters notifying 
the states that the EPA intended to modify the states' recommendations.
    Although not required by section 107(d) of the CAA, the EPA also 
provided an opportunity for members of the public to comment on the 
EPA's 120-day response letters to states and tribes. For the 
notification letters sent on or about December 9, 2011, the EPA 
announced a 30-day public comment period in the Federal Register on 
December 20, 2011 (76 FR 78872). The comment period was subsequently 
extended until February 3, 2012 (77 FR 2677; January 19, 2012). On 
February 14, 2012 (77 FR 8211), the EPA reopened the public comment 
period for the limited purpose of inviting comment on the EPA's revised 
responses to Illinois, Indiana, and Wisconsin. State and tribal 
recommendations and the EPA's 120-day response letters were posted on 
EPA's Web site at http://www.epa.gov/ozonedesignations and are 
available in the docket for the designations action. Comments from the 
states, tribes and the public, and EPA's responses to significant 
comments, are also in the docket.

VII. What air quality data has the EPA used to designate these areas 
for the 2008 ozone NAAQS?

    The EPA based the designations in this action on the most recent 3 
years of certified air quality monitoring data available at the end of 
January 2012 when the EPA notified Illinois, Indiana, and Wisconsin of 
its revised responses to their designation recommendations. Thus, the 
EPA considered ozone monitoring data for the 2009-2011 period for 
Illinois and for the 2008-2010 period for Indiana and Wisconsin.
    Under 40 CFR 58.16, states are required to report all monitored 
ozone air quality data and associated quality assurance data within 90 
days after the end of each quarterly reporting period, and under 40 CFR 
58.15(a)(2) states are required to submit annual summary reports and a 
data certification letter to the EPA by May 1 for ozone air quality 
data collected in the previous calendar year. States generally had not 
completed these requirements for calendar year 2011 ozone air quality 
data when the EPA notified states of our intended designations on 
December 9, 2011. For purposes of the designations promulgated on April 
30, 2012, several states recommended that the EPA consider monitoring 
data from 2009-2011 in making final decisions and certified their 2011 
data early for this purpose. In the letters to these states, the EPA 
indicated it would need the certified data by February 29, 2012, in 
order to have sufficient time to consider it in making final decisions. 
On December 7, 2011, Illinois sent a letter to the EPA submitting the 
state's 2011 certified air quality data for consideration in the 
designations.

[[Page 34225]]

Although there was not sufficient time for the EPA to consider the 2011 
data from Illinois in the December 9, 2011, letters, the EPA 
subsequently considered the data and sent letters to Illinois, Indiana, 
and Wisconsin on January 31, 2012, revising the intended designation 
for 12 counties in the Chicago-Naperville, IL-IN-WI area. Indiana and 
Wisconsin did not request that the EPA consider their 2011 monitoring 
data or early certify such data.

VIII. What are the ozone air quality classifications?

    In accordance with CAA section 181(a)(1), each area designated as 
nonattainment for the 2008 ozone NAAQS is classified by operation of 
law at the same time as the area is designated by the EPA. Under 
Subpart 2 of part D of Title I of the CAA, state planning and emissions 
control requirements for ozone are determined, in part, by a 
nonattainment area's classification. The ozone nonattainment areas are 
classified based on the severity of their ozone levels (as determined 
based on the area's ``design value,'' which represents air quality in 
the area for the most recent 3 years).\4\ The possible classifications 
are Marginal, Moderate, Serious, Severe, and Extreme. Nonattainment 
areas with a ``lower'' classification have ozone levels that are closer 
to the standard than areas with a ``higher'' classification. Areas in 
the lower classification levels have fewer and/or less stringent 
mandatory air quality planning and control requirements than those in 
higher classifications. The EPA established the air quality thresholds 
that define the classification categories in a rule titled, 
``Implementation of the 2008 National Ambient Air Quality Standards for 
Ozone: Nonattainment Area Classifications Approach, Attainment 
Deadlines and Revocation of the 1997 Ozone Standards for Transportation 
Conformity Purposes'' (77 FR 30160; May 21, 2012). Based on those 
thresholds, the Chicago-Naperville, IL-IN-WI area is classified as a 
Marginal area.
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    \4\ The air quality design value for the 8-hour ozone NAAQS is 
the 3-year average of the annual 4th highest daily maximum 8-hour 
average ozone concentration. See 40 CFR part 50, Appendix I.
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IX. Can states request that areas within 5 percent of the upper or 
lower limit of a classification threshold be reclassified?

    As discussed in the April 30, 2012, final rule, states may request 
that an area be reclassified to a higher or lower classification 
pursuant to section 181(a)(4), within 90 days of promulgation of the 
designation, if the area would have been classified in another category 
if the design value in the area were 5 percent greater or 5 percent 
less than the level on which such classification was based. The 
Chicago-Naperville, IL-IN-WI nonattainment area is being designated as 
a Marginal area, which is the lowest classification category. 
Therefore, the only possible reclassification would be to a higher 
classification. Marginal areas with an air quality design value of 
0.082 ppm or more are eligible to request reclassification to a higher 
classification under section 181(a)(4). Because the 2009-2011 design 
value for the Chicago-Naperville, IL-IN-WI nonattainment area is 0.076 
ppm, the nonattainment area is not eligible to be reclassified under 
that provision. However, the EPA notes that under section 181(b)(3), 
the EPA must grant any state request to reclassify an area into a 
higher classification.

X. Where can I find information forming the basis for this rule and 
exchanges between the EPA, states and tribes related to this rule?

    Information providing the basis for this action is provided in the 
docket for this rulemaking, Docket ID NO. EPA-HQ-OAR-2008-0476. The 
applicable EPA guidance memoranda and copies of correspondence 
regarding this process between the EPA and the states, tribes and other 
parties are available for review at the EPA Docket Center listed above 
in the addresses section of this document, and on the EPA's ozone 
designation Web site at http://www.epa.gov/ozonedesignations. State-
specific information is available from the EPA Regional Office.

XI. What are the corrections to inadvertent errors in the designations 
for three areas in the April 30, 2012 designations rule?

    This rule also corrects inadvertent errors in the regulatory text 
for two areas in Kentucky and one area in Arkansas in the ozone 
designation rule signed on April 30, 2012 (77 FR 30088; May 21, 2012). 
The affected areas are the Cincinnati, OH-KY-IN nonattainment area 
(specifically related to Boone and Campbell counties), the partial 
Kenton County, KY unclassifiable/attainment area, and Crittenden 
County, AR. These corrections are set forth in the regulatory text at 
the end of this notice.
    The Technical Support Document for the Cincinnati, OH-KY-IN 
nonattainment area, which is part of the record for the April 30, 2012, 
designations rule, states, ``All of the census tracts in Boone, 
Campbell, and Kenton Counties are included in the nonattainment area 
for the 2008 8-hour ozone NAAQS, excluding census tracts 706.01 and 
706.04 in Boone County, 637.01 and 637.02 in Kenton County, and 520.01 
and 520.02 in Campbell County.'' In the regulatory text for the 
Cincinnati, OH-KY-IN nonattainment area, 2000 Census tracts 706.01 and 
706.04 in Boone County, KY and 2000 Census tracts 520.01 and 520.02 in 
Campbell County, KY were inadvertently listed as being part of the 
nonattainment area. These 2000 Census tracts were also correctly listed 
in the regulatory text as designated unclassifiable/attainment. The EPA 
is removing the erroneous duplicative listings under the Cincinnati, 
OH-KY-IN nonattainment area. For the partial Kenton County 
unclassifiable/attainment area, this action corrects a typographical 
error that incorrectly numbered one of the component 2000 Census tracts 
as 637.04 rather than 637.02.
    The Technical Support Document for the Memphis, TN-MS-AR 
nonattainment area, which is part of the record for the April 30, 2012, 
designations rule, states, ``Based on the assessment of the factors 
described above, the EPA is designating the following counties as 
nonattainment for the Memphis, TN-MS-AR area because they are either 
violating the 2008 ozone NAAQS or contributing to a violation in a 
nearby area: Crittenden County, Arkansas, and Shelby County, Tennessee 
in their entireties and the portion of DeSoto County that is included 
in the Memphis MPO boundary.'' In the regulatory text for the April 30, 
2012, designations rule, Crittenden County, AR was correctly listed as 
part of the Memphis, TN-MS-AR nonattainment area. However, the county 
was also inadvertently listed as an unclassifiable/attainment area. The 
EPA is correcting that error by removing the duplicative entry for 
Crittenden County, AR as an unclassifiable/attainment area.

XII. Statutory and Executive Order Reviews

    Upon promulgation of a new or revised NAAQS, the CAA requires the 
EPA to designate areas as attaining or not attaining the NAAQS. The CAA 
then specifies requirements for areas based on whether such areas are 
attaining or not attaining the NAAQS. In this final rule, the EPA 
assigns designations to areas as required.

[[Page 34226]]

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action responds to the CAA requirement to promulgate air 
quality designations after promulgation of a new or revised NAAQS. This 
type of action is exempt from review under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This rule responds to the CAA 
requirement to promulgate air quality designations after promulgation 
of a new or revised NAAQS. This requirement is prescribed in the CAA 
section 107. The present final rule does not establish any new 
information collection requirements.

C. Regulatory Flexibility Act

    This final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice-and-comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice-and-comment requirements as provided under CAA 
section 107(d)(2)(B).

D. Unfunded Mandates Reform Act

    This action contains no federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. It does not create 
any additional requirements beyond those of the CAA and ozone NAAQS (40 
CFR 50.15). The CAA establishes the process whereby states take primary 
responsibility in developing plans to meet the ozone NAAQS.

E. Executive Order 13132: Federalism

    This final rule does not have federalism implications. It 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. The CAA establishes the process 
whereby states take primary responsibility in developing plans to meet 
the ozone NAAQS. This rule will not modify the relationship of the 
states and the EPA for purposes of developing programs to implement the 
ozone NAAQS. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) the EPA may not issue a regulation that has tribal 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 tribal 
governments, or the EPA consults with tribal officials early in the 
process of developing the proposed regulation and develops a tribal 
summary impact statement.
    The EPA has concluded that this action does not have tribal 
implications. The EPA is not designating any areas of Indian country in 
this final rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 
12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus 
standards (VCS) in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by VCS bodies. The NTTAA 
directs the EPA to provide Congress, through the Office of Management 
and Budget, explanations when the Agency decides not to use available 
and applicable VCS.
    This action does not involve technical standards. Therefore, the 
EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations.

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the U.S.
    The CAA requires that the EPA designate as nonattainment ``any area 
that does not meet (or that contributes to ambient air quality in a 
nearby area that does not meet) the national primary or secondary 
ambient air quality standard for the pollutant.'' By designating as 
nonattainment all areas where available information indicates a 
violation of the ozone NAAQS or a contribution to a nearby violation, 
this action protects all those residing, working, attending school, or 
otherwise present in those areas regardless of minority or economic 
status.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population.

[[Page 34227]]

K. Congressional Review Act

    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 
U.S. The 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 U.S. 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). This rule will be effective July 20, 2012.

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by the EPA. 
This section provides, in part, that petitions for review must be filed 
in the Court of Appeals for the District of Columbia Circuit: (i) when 
the agency action consists of ``nationally applicable regulations 
promulgated, or final actions taken, by the Administrator,'' or (ii) 
when such action is locally or regionally applicable, if ``such action 
is based on a determination of nationwide scope or effect and if in 
taking such action the Administrator finds and publishes that such 
action is based on such a determination.''
    This rule designating the final few areas for the 2008 ozone NAAQS 
is ``nationally applicable'' within the meaning of section 307(b)(1). 
This rule, along with a rule signed on April 30, 2012, establishes 
designations for areas across the U.S. for the 2008 ozone NAAQS. At the 
core of this rulemaking is the EPA's interpretation of the definition 
of nonattainment under section 107(d)(1) of the CAA, and its 
application of that interpretation to areas across the country.
    Thus, any petitions for review of final designations must be filed 
in the Court of Appeals for the District of Columbia Circuit within 60 
days from the date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: May 31, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons set forth in the preamble, 40 CFR part 81, is 
amended as follows:

PART 81--DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
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


Sec.  81.304  [Amended]

0
2. In section 81.304, the table entitled ``Arkansas--2008 8-Hour Ozone 
NAAQS (Primary and Secondary)'' is amended by removing the entry for 
Crittenden County before the entry for Cross County.

0
3. In section 81.314, the table entitled ``Illinois--2008 8-Hour Ozone 
NAAQS (Primary and Secondary)'' is amended as follows:
0
a. By adding a new entry for ``Chicago-Naperville, IL-IN-WI'' before 
the entry for ``St. Louis-St. Charles-Farmington, MO-IL'';
0
b. By adding a new entry for ``Grundy County (remainder)'' before the 
entry for ``Hamilton County''; and
0
c. By adding a new entry for ``Kendall County (remainder)'' before the 
entry for ``Knox County''.
    The additions read as follows:


Sec.  81.314  Illinois.

* * * * *

                                        Illinois--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                     Designation                        Classification
            Designated area            -------------------------------------------------------------------------
                                             Date \1\             Type             Date \1\            Type
----------------------------------------------------------------------------------------------------------------
Chicago-Naperville, IL-N-WI: \2\......  .................  Nonattainment....  .................  Marginal.
    Cook County
    DuPage County
    Grundy County (part)
        Aux Sable Township
        Goose Lake Township
    Kane County
    Kendall County (part)
        Oswego Township
    Lake County
    McHenry County
    Will County
 
                                                  * * * * * * *
Grundy County (remainder) \3\.........  .................  Unclassifiable/
                                                            Attainment.
 
                                                  * * * * * * *
Kendall County (remainder)............  .................  Unclassifiable/
                                                            Attainment.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.
\3\ Includes any Indian country in each county or area, unless otherwise specified.


[[Page 34228]]

* * * * *

0
4. In section 81.315, the table entitled ``Indiana--2008 8-Hour Ozone 
NAAQS (Primary and Secondary)'' is amended as follows:
0
a. By adding a new entry for ``Chicago-Naperville, IL-IN-WI'' before 
the entry for ``Cincinnati, OH-K-IN''; and
0
b. By adding a new entry for ``Jasper County'' before the entry for 
``Jay County''.
    The additions read as follows:


Sec.  81.315  Indiana.

* * * * *

                                        Indiana--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                     Designation                        Classification
            Designated area            -------------------------------------------------------------------------
                                             Date \1\             Type             Date \1\            Type
----------------------------------------------------------------------------------------------------------------
Chicago-Naperville, IL-IN-WI: \2\.....  .................  Nonattainment....  .................  Marginal.
    Lake County
    Porter County
 
                                                  * * * * * * *
Jasper County \3\.....................  .................  Unclassifiable/
                                                            Attainment.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.
\3\ Includes any Indian country in each county or area, unless otherwise specified.

* * * * *


Sec.  81.318  [Amended]

0
5. In section 81.318, the table entitled ``Kentucky--2008 8-Hour Ozone 
NAAQS (Primary and Secondary)'' is amended as follows:
0
a. By removing the 2000 Census tracts ``706.01'' and ``706.04'' under 
the entry for ``Boone County (part)'' under the entry for ``Cincinnati, 
OH-KY-IN'';
0
b. By removing the 2000 Census tracts ``520.01'' and ``520.02'' under 
the entry for ``Campbell County (part)'' under the entry for 
``Cincinnati, OH-KY-IN''; and
0
c. By revising 2000 Census tract ``637.04'' to read as ``637.02'' under 
the entry for ``Kenton County (part)'' under ``Rest of State''.
0
6. In section 81.350, the table entitled ``Wisconsin--2008 8-Hour Ozone 
NAAQS (Primary and Secondary)'' is amended as follows:
0
a. By adding a new entry for ``Chicago-Naperville, IL-IN-WI'' before 
the entry for ``Sheboygan County, WI''; and
0
b. By adding a new entry for ``Kenosha County (remainder)'' before the 
entry for ``Kewaunee County''.
    The additions read as follows:


Sec.  81.350  Wisconsin.

* * * * *

                                       Wisconsin--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                     Designation                        Classification
            Designated area            -------------------------------------------------------------------------
                                             Date\1\              Type             Date\1\             Type
----------------------------------------------------------------------------------------------------------------
Chicago-Naperville, IL-IN-WI: \2\.....  .................  Nonattainment....  .................  Marginal.
    Kenosha County (part)
        Pleasant Prairie Township
        Somers Township
 
                                                  * * * * * * *
Kenosha County (remainder) \3\........  .................  Unclassifiable/
                                                            Attainment.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.
\3\ Includes any Indian country in each county or area, unless otherwise specified.

* * * * *
[FR Doc. 2012-14097 Filed 6-8-12; 8:45 am]
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