[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78164-78167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31339]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0850; FRL-9238-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; The Milwaukee-Racine and Sheboygan Areas; Determination of 
Attainment of the 1997 8-hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is making determinations under the Clean Air Act (CAA) 
that the Milwaukee-Racine and Sheboygan, Wisconsin areas have attained 
the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). 
The Milwaukee-Racine area includes Milwaukee, Ozaukee, Racine, 
Washington, Waukesha, and Kenosha Counties. The Sheboygan area includes 
Sheboygan County. The determinations are based on complete, quality-
assured and certified ambient air monitoring data that show that the 
areas have monitored attainment of the 1997 8-hour ozone standard for 
the 2006-2008 and 2007-2009 monitoring periods. Preliminary data 
available for 2010 indicate that the areas continue to monitor 
attainment. As a result of these determinations, the requirements for 
these areas to submit attainment demonstrations and associated 
reasonably available control measures (RACM), reasonable further 
progress plans (RFP), contingency measures, and other State 
Implementation Plan (SIP) revisions related to attainment of the 
standard are suspended for as long as the areas continue to attain the 
1997 8-hour ozone standard. These determinations also suspend the 
requirement for EPA to promulgate attainment demonstration, RFP, and 
any other attainment-related Federal Implementation Plans (FIPs) for 
these areas.

DATES: This direct final rule will be effective February 14, 2011, 
unless EPA receives adverse comments by January 14, 2011. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2010-0850, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#caa7a5a5a4afb3e4a0a5a2a48aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="2f424040414a5601454047416f4a5f4e01484059">[email protected]</span></a>.
    3. Fax: (312) 692-2551.
    4. Mail: John M. Mooney, Chief, Attainment Planning and Maintenance 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2010-0850. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
at www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
We recommend that you telephone Kathleen D'Agostino, Environmental 
Engineer, at (312) 886-1767 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
<a href="/cdn-cgi/l/email-protection#137772747c60677a7d7c3d7872677b7f76767d537663723d747c65"><span class="__cf_email__" data-cfemail="fc989d9b938f88959293d2979d889490999992bc998c9dd29b938a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
section is arranged as follows:

I. What is the background for these actions?

[[Page 78165]]

II. What actions is EPA taking?
III. What is the effect of these actions?
IV. What is EPA's analysis of the relevant air quality data?
V. What are EPA's determinations and their consequences?
VI. Statutory and Executive Order Reviews

I. What is the background for these actions?

    The CAA establishes a process for air quality management through 
the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS 
was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 
56852), the Milwaukee-Racine and Sheboygan areas were designated as 
severe and serious nonattainment areas, respectively, under the 1-hour 
ozone NAAQS. The Sheboygan area was subsequently redesignated to 
attainment of the 1-hour standard on August 26, 1996 (61 FR 43675). The 
Milwaukee-Racine area was monitoring attainment of the 1-hour ozone 
standard by the end of the 2005 ozone season when, on June 15, 2005, 
EPA revoked the 1-hour ozone NAAQS. However, the Milwaukee-Racine area 
was still designated as nonattainment under the 1-hour ozone NAAQS.
    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 
FR 23857), EPA published a final rule designating and classifying areas 
under the 8-hour ozone NAAQS. These designations and classifications 
became effective June 15, 2004. EPA designated as nonattainment any 
area that was violating the 8-hour ozone NAAQS based on the three most 
recent years of air quality data, 2001-2003.
    The CAA contains two sets of provisions, subpart 1 and subpart 2, 
that address planning and control requirements for nonattainment areas. 
(Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for 
nonattainment areas for any pollutant, including ozone, governed by a 
NAAQS. Subpart 2 provides more specific requirements for ozone 
nonattainment areas.
    Under EPA's implementation rule for the 1997 8-hour ozone standard, 
69 FR 23951 (April 30, 2004), an area was classified under subpart 2 
based on its 8-hour ozone design value (i.e. the 3-year average of the 
annual fourth-highest daily maximum 8-hour average ozone 
concentration), if it had a 1-hour design value at the time of 
designation at or above 0.121 ppm (the lowest 1-hour design value in 
Table 1 of subpart 2) (69 FR 23954). The Milwaukee-Racine and Sheboygan 
areas were designated as subpart 2, 8-hour ozone moderate nonattainment 
areas by EPA on April 30, 2004 (69 FR 23857 and 23947), based on air 
quality monitoring data from 2001-2003 (69 FR 23860).
    On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour 
ozone standard of 0.075 ppm. In May 2008, states, environmental groups, 
and industry groups filed petitions with the United States Court of 
Appeals for the District of Columbia Circuit for review of the 2008 
ozone standards. In March 2009, the court granted EPA's request to stay 
the litigation so EPA could review the standards and determine whether 
they should be reconsidered. On September 16, 2009, EPA announced 
reconsideration of the 2008 decision setting national standards for 
ground-level ozone. The designation process for that standard has been 
stayed. On January 6, 2010, EPA proposed to set the level of the 
primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, 
rather than at 0.075 ppm. EPA is working to complete reconsideration of 
the standard and expects thereafter to proceed with designations. The 
actions addressed in today's rulemaking relate only to the 1997 8-hour 
ozone standard.

II. What actions is EPA taking?

    EPA is determining that the Milwaukee-Racine and Sheboygan 1997 8-
hour ozone nonattainment areas have attained the 1997 8-hour ozone 
NAAQS. These determinations are based upon complete, quality-assured 
and certified ambient air monitoring data for the years 2007-2009 
showing that the areas have monitored attainment of the 1997 8-hour 
ozone NAAQS. Today's rulemaking does not address requirements for the 
2008 8-hour ozone NAAQS or any future revisions to these NAAQS.

III. What is the effect of these actions?

    For the Milwaukee-Racine and Sheboygan areas, under the provisions 
of 40 CFR 51.918, these determinations would: (1) Suspend the 
requirements for the State to submit a SIP and/or for EPA to promulgate 
a FIP for an attainment demonstration and associated RACM (including 
reasonably available control technologies), RFP plan, contingency 
measures, and any other planning SIPs or FIPs related to attainment of 
the 1997 8-hour ozone NAAQS; (2) continue until such time, if any, that 
EPA subsequently determines that the area has violated the 1997 8-hour 
NAAQS; (3) be separate from, and not influence or otherwise affect, any 
future designation determination or requirements for the areas based on 
the revision to the 2008 8-hour ozone NAAQS or the reconsidered 8-hour 
ozone NAAQS; and (4) remain in effect regardless of whether EPA 
designates the area as a nonattainment area for purposes of the revised 
or reconsidered 2008 8-hour ozone NAAQS.
    If EPA subsequently determines, after notice-and-comment rulemaking 
in the Federal Register, that the Milwaukee-Racine and/or Sheboygan 
area has violated the 1997 8-hour ozone NAAQS, the basis for the 
suspension of certain requirements for that area, set forth at 40 CFR 
51.918, would no longer exist, and the area would thereafter have to 
address pertinent requirements.
    The determinations of attainment in this notice are not equivalent 
to redesignations to attainment under section 107(d)(3) of the CAA 
because we have not approved maintenance plans for the areas under 
section 175A of the CAA, nor have we found that the areas have met the 
other statutory requirements for redesignation. The designation status 
of each of the areas remains nonattainment for the 1997 8-hour ozone 
NAAQS until such time as EPA determines that it meets the CAA 
requirements for redesignation to attainment.

IV. What is EPA's analysis of the relevant air quality data?

    Whether an area is considered to be attaining the 8-hour ozone 
NAAQS is determined in accordance with 40 CFR 50.10 and part 50, 
Appendix I, based on three complete, consecutive calendar years of 
quality-assured air quality monitoring data. To attain the standard, 
the 3-year average of the fourth-highest daily maximum 8-hour average 
ozone concentrations measured at each monitor within an area over each 
year must not exceed 0.08 ppm. Based on the rounding convention 
described in 40 CFR part 50, appendix I, the standard is attained if 
the design value is 0.084 ppm or below. The data must be collected and 
quality-assured in accordance with 40 CFR part 58, and recorded in the 
EPA's Air Quality System (AQS). The monitors generally should have 
remained at the same location for the duration of the monitoring period 
required for determining attainment.
    Wisconsin has quality-assured and certified all of the ambient 
monitoring data for 2006-2008 and 2007-2009 in accordance with 40 CFR 
58.10, and has recorded it in the AQS database. The data meet the 
completeness criteria in 40 CFR part 50, Appendix I, which require a 
minimum completeness of 75% annually and 90% over each 3-year period. 
Monitoring data are presented in

[[Page 78166]]

Table 1 below. Preliminary data available for 2010 are consistent with 
continued attainment.

       Table 1--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         2006 4th   2007 4th   2008 4th   2009 4th  2006-2008  2007-2009
                Area                           County                  Monitor             high       high       high       high     average    average
                                                                                          (ppm)      (ppm)      (ppm)      (ppm)      (ppm)      (ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine....................  Kenosha................  Pleasant Prairie 55-059-     0.079      0.085      0.072      0.071      0.078      0.076
                                                                0019.
                                      Milwaukee..............  16th St. HC 55-079-0010      0.064      0.067      0.059      0.066      0.063      0.064
                                                               WDNR SERHQ 55-079-0026.      0.068      0.075      0.063      0.067      0.068      0.068
                                                               UWM-North 55-079-0041..      0.073      0.078      0.065      0.068      0.072      0.070
                                                               Bayside 55-079-0085....      0.073      0.083      0.069      0.072      0.075      0.074
                                      Ozaukee................  Grafton 55-089-0008....      0.071      0.082      0.064      0.067      0.072      0.071
                                                               Harr. Beach 55-089-0009      0.072      0.084      0.067      0.070      0.074      0.073
                                      Racine.................  Racine 55-101-0017.....      0.071      0.077      0.065      0.071      0.071      0.071
                                      Washington.............  Slinger 55-131-0009....      0.066      0.071      0.060      0.065      0.065      0.065
                                      Waukesha...............  Waukesha 55-133-0027...      0.067      0.072      0.060      0.059      0.066      0.063
Sheboygan...........................  Sheboygan..............  Kohler Andre Park 55-        0.083      0.088      0.075      0.074      0.082      0.079
                                                                117-0006.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    On the basis of this review, EPA has concluded that the Milwaukee-
Racine area and the Sheboygan area have attained the 1997 8-hour NAAQS 
based on the most recent complete, quality assured 3 year period of 
data: 2007-2009. In addition, preliminary monitoring data for 2010 that 
are available to date indicate that these areas continue to attain the 
1997 8-hour ozone NAAQS.

V. What are EPA's determinations and their consequences?

    EPA is making determinations that the Milwaukee-Racine and 
Sheboygan, Wisconsin areas have attained the 1997 8-hour ozone NAAQS. 
The determinations are based upon complete, quality-assured and 
certified ambient air monitoring data, which show that the areas have 
monitored attainment of the 1997 8-hour ozone standard for the 2006-
2008 and 2007-2009 monitoring periods. Preliminary data for 2010 
indicate that the areas continue to monitor attainment.
    As provided in 40 CFR 51.918, the determinations of attainment for 
the Milwaukee-Racine and Sheboygan areas suspend the requirements for 
the State of Wisconsin to submit for these areas: an attainment 
demonstration, associated RACM, RFP plan, contingency measures, and any 
other planning SIPs related to attainment of the 1997 8-hour ozone 
NAAQS. These determinations also suspend any requirement for EPA to 
promulgate FIPs for these areas deriving from the concomitant SIP 
obligations.
    The attainment-related SIP and FIP obligations remain suspended for 
each area for so long as it continues to attain the 1997 8-hour ozone 
NAAQS or until it is redesignated for that NAAQS, at which time the 
obligations end. 40 CFR 51.918.
    We are publishing these actions without prior proposal because we 
view them as noncontroversial and anticipate no adverse comments. 
However, in the proposed rules section of this Federal Register 
publication, we are publishing a separate document that will serve as 
the proposal to determine that the Milwaukee and/or Sheboygan area has 
attained the 1997 8-hour ozone standard if relevant adverse written 
comments are filed with respect to that area. This rule will be 
effective February 14, 2011 without further notice unless we receive 
relevant adverse written comments by January 14, 2011. If we receive 
such comments with respect to either the Milwaukee-Racine or the 
Sheboygan area, we will withdraw the action with regard to that area 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on the proposed action. The 
EPA will not institute a second comment period. Any parties interested 
in commenting on these actions should do so at this time. Please note 
that if EPA receives adverse comment on a section of this rule and if 
that portion may be severed from the remainder of the rule, EPA may 
adopt as final those provisions of the rule that are not the subject of 
an adverse comment. If we do not receive any comments, this action will 
be effective February 14, 2011.

VI. Statutory and Executive Order Reviews

    These actions make determinations based on air quality data, and 
would, if finalized, result in the suspension of certain Federal 
requirements. For that reason, these actions:
    <bullet> Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);

[[Page 78167]]

    <bullet> Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Are not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because a determinations of attainment is an action that affects the 
status of a geographical area and does not impose any new regulatory 
requirements on tribes, impact any existing sources of air pollution on 
tribal lands, nor impair the maintenance of ozone national ambient air 
quality standards in tribal lands. However, because there are tribal 
lands located in Milwaukee County, we provided the affected tribe with 
the opportunity to consult with EPA on the attainment determination. 
The consultation occurred on November 15, 2010. The affected tribe 
raised no concerns.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. These actions are not ``major rules'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 14, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of these actions for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw these direct final rules and address the comment in the 
proposed rulemaking. These actions may not be challenged later in 
proceedings to enforce their requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: November 24, 2010.
Susan Hedman,
Regional Administrator, Region 5.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart YY--Wisconsin

0
2. Section 52.2585 is amended by adding paragraph (y) to read as 
follows:


Sec.  52.2585  Control strategy: Ozone.

* * * * *
    (y) Determination of attainment. EPA has determined, as of December 
15, 2010 that the Milwaukee-Racine, WI and Sheboygan, WI areas have 
attained the 1997 8-hour ozone standard. These determinations suspend 
the requirements for these areas to submit attainment demonstrations 
and associated reasonably available control measures (RACM), reasonable 
further progress plans (RFP), contingency measures, and other State 
Implementation Plan (SIP) revisions related to attainment of the 
standard for as long as the areas continue to attain the 1997 8-hour 
ozone standard. These determinations also stay the requirement for EPA 
to promulgate attainment demonstration and RFP Federal Implementation 
Plans (FIPs) for these areas.

[FR Doc. 2010-31339 Filed 12-14-10; 8:45 am]
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