Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 34221 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. 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, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides. 

Dated: May 29, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart P—Indiana 

■ 2. Section 52.770 is amended by 

adding a new entry at the end of the 

table in paragraph (c) for ‘‘Article 26. 

Regional Haze’’ and by adding a new 

entry in alphabetical order in the table 

in paragraph (e) for ‘‘Regional Haze 

Plan’’ to read as follows: 

§ 52.770 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED INDIANA REGULATIONS

Indiana citation Subject Indiana 

effective date EPA approval date Notes 

*******

Article 26. Regional Haze 

Rule 2. Best Available Retrofit Technology Emission Limitations 

26–2–1 ......................................... Applicability .................................. 3/09/2011 6/11/2012, [Insert page

number where the document begins].

26–2–2 ......................................... Alcoa emission limitations and 

compliance methods.

3/09/2011 6/11/2012, [Insert page 

number where the document begins].

* * * * * (e) * * * 

EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title Indiana date EPA approval Explanation 

*******

Regional Haze Plan ............................ 01/14/2011 and 03/10/2011 ............................ 6/11/2012, [Insert page 

number where the document begins].

* * * * * * * 

[FR Doc. 2012–13955 Filed 6–8–12; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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, ILIN-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, 

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34222 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 

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: 

oldham.carla@epa.gov. 

Regional Office contact: Edward Doty, 

phone number (312) 886–6057 or by 

email at: doty.edward@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

public may inspect the rule and statespecific technical support information 

at the following location: 

Regional office Affected states 

John Mooney, Chief, 

Air Programs 

Branch, EPA Region 5, 77 West 

Jackson Street, 

Chicago, IL 60604, 

(312) 886–6043.

Illinois, Indiana, and 

Wisconsin. 

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 ChicagoNaperville, 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, ILIN-WI nonattainment area. The EPA is 

designating the remaining county and 

parts of counties as unclassifiable/ 

attainment. The Chicago-Naperville, ILIN-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, OHKY-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 

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Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 34223 

1See 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. 

2This view was confirmed in Catawba County v. 

EPA, 571 F.3d 20 (D.C. Cir. 2009). 

3See 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, 

Continued 

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. 

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. 

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

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34224 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 

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.’’ 

(There are no areas of Indian country 

affected by this action.) 

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, ILIN-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. 

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Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 34225 

4The 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. 

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, ILIN-WI area is classified as a Marginal 

area. 

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 ChicagoNaperville, 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. Statespecific 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-MSAR 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. 

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34226 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 

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 noticeand-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. 

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Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 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 

■ 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 

§ 81.304 [Amended] 

■ 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. 

■ 3. In section 81.314, the table entitled 

‘‘Illinois—2008 8-Hour Ozone NAAQS 

(Primary and Secondary)’’ is amended 

as follows: 

■ a. By adding a new entry for ‘‘ChicagoNaperville, IL-IN-WI’’ before the entry 

for ‘‘St. Louis-St. Charles-Farmington, 

MO-IL’’; 

■ b. By adding a new entry for ‘‘Grundy 

County (remainder)’’ before the entry for 

‘‘Hamilton County’’; and 

■ c. By adding a new entry for ‘‘Kendall 

County (remainder)’’ before the entry for 

‘‘Knox County’’. 

The additions read as follows: 

§ 81.314 Illinois. 

* * * * * 

ILLINOIS—2008 8-HOUR OZONE NAAQS 

[Primary and secondary] 

Designated area 

Designation Classification 

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.

* * * * * * * 

1This date is July 20, 2012, unless otherwise noted. 

2Excludes Indian country located in each area, unless otherwise noted. 

3 Includes any Indian country in each county or area, unless otherwise specified. 

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34228 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations 

* * * * * 

■ 4. In section 81.315, the table entitled 

‘‘Indiana—2008 8-Hour Ozone NAAQS 

(Primary and Secondary)’’ is amended 

as follows: 

■ a. By adding a new entry for ‘‘ChicagoNaperville, IL-IN-WI’’ before the entry 

for ‘‘Cincinnati, OH-K-IN’’; and 

■ b. By adding a new entry for ‘‘Jasper 

County’’ before the entry for ‘‘Jay 

County’’. 

The additions read as follows: 

§ 81.315 Indiana. 

* * * * * 

INDIANA—2008 8-HOUR OZONE NAAQS 

[Primary and secondary] 

Designated area 

Designation Classification 

Date 1 Type Date 1 Type 

Chicago–Naperville, IL-IN-WI: 2 ................................................ .................................. Nonattainment ......... .................................. Marginal. 

Lake County 

Porter County 

* * * * * * * 

Jasper County 3 ........................................................................ .................................. Unclassifiable/Attainment.

* * * * * * * 

1This date is July 20, 2012, unless otherwise noted. 

2Excludes Indian country located in each area, unless otherwise noted. 

3 Includes any Indian country in each county or area, unless otherwise specified. 

* * * * * 

§ 81.318 [Amended] 

■ 5. In section 81.318, the table entitled 

‘‘Kentucky—2008 8-Hour Ozone 

NAAQS (Primary and Secondary)’’ is 

amended as follows: 

■ 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’’; 

■ 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 

■ c. By revising 2000 Census tract 

‘‘637.04’’ to read as ‘‘637.02’’ under the 

entry for ‘‘Kenton County (part)’’ under 

‘‘Rest of State’’. 

■ 6. In section 81.350, the table entitled 

‘‘Wisconsin—2008 8-Hour Ozone 

NAAQS (Primary and Secondary)’’ is 

amended as follows: 

■ a. By adding a new entry for ‘‘ChicagoNaperville, IL-IN-WI’’ before the entry 

for ‘‘Sheboygan County, WI’’; and 

■ b. By adding a new entry for ‘‘Kenosha 

County (remainder)’’ before the entry for 

‘‘Kewaunee County’’. 

The additions read as follows: 

§ 81.350 Wisconsin. 

* * * * * 

WISCONSIN—2008 8-HOUR OZONE NAAQS 

[Primary and secondary] 

Designated area 

Designation Classification 

Date1 Type Date1 Type 

Chicago-Naperville, IL-IN-WI: 2 ................................................ .................................. Nonattainment ......... .................................. Marginal. 

Kenosha County (part) 

Pleasant Prairie Township 

Somers Township 

* * * * * * * 

Kenosha County (remainder) 3 ................................................. .................................. Unclassifiable/Attainment.

* * * * * * * 

1This date is July 20, 2012, unless otherwise noted. 

2Excludes 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] 

BILLING CODE 6560–50–P 

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