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[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34819-34830]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14102]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2010-0523; FRL-9683-7]

Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Illinois; Redesignation of 
the Illinois Portion of the St. Louis, MO-IL Area to Attainment for the 
1997 8-hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a request from the State of Illinois to 
redesignate the Illinois portion of the St. Louis, MO-IL area to 
attainment of the 1997 8-hour ozone National Ambient Air Quality 
Standard (NAAQS or standard). The St. Louis area includes Jersey, 
Madison, Monroe, and St. Clair Counties in Illinois and St. Louis City 
and Franklin, Jefferson, St. Charles, and St. Louis Counties in 
Missouri. The Illinois Environmental Protection Agency (IEPA) submitted 
this request on May 26, 2010, and supplemented its request on September 
16, 2011. EPA proposed to approve this submission on December 22, 2011, 
and provided a 30-day review and comment period. On January 20, 2012, 
EPA extended the public comment period for an additional 30 days. The 
comment period closed on February 22, 2012. EPA received comments 
submitted on behalf of Sierra Club. In addition to approving the 
redesignation request EPA is taking several other related actions. EPA 
is approving, as a revision to the Illinois State Implementation Plan 
(SIP), the State's plan for maintaining the 1997 8-hour ozone standard 
through 2025 in the area. EPA is approving the 2002 emissions 
inventory, submitted by IEPA on June 21, 2006, and supplemented on 
September 16, 2011, as meeting the comprehensive emissions inventory 
requirement of the Clean Air Act (CAA) for the Illinois portion of the 
St. Louis area. Finally, EPA finds adequate and is approving the 
State's 2008 and 2025 Motor Vehicle Emission Budgets (MVEBs) for the 
Illinois portion of the St. Louis area.

DATES: Effective Date: This rule is effective on June 12, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2010-0523. All documents in the docket are listed on 
the www.regulations.gov Website. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) 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 through 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, 
dagostino.kathleen@epa.gov.

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 this rule?
II. What comments did we receive on the proposed rule?
III. What actions is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this rule?

    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million (ppm). EPA published a final rule 
designating and classifying areas under the 1997 8-hour ozone NAAQS on 
April 30, 2004 (69 FR 23857). In that rulemaking, the St. Louis area 
was designated as nonattainment for the 1997 8-hour ozone standard and 
classified as a moderate nonattainment area under subpart 2 of the CAA.
    On May 26, 2010, IEPA requested redesignation of the Illinois 
portion of the St. Louis area to attainment of the 1997 8-hour ozone 
standard based on ozone data for the period of 2007-2009. On September 
16, 2011, IEPA supplemented the original ozone redesignation request, 
revising the mobile source emission estimates using EPA's on-road 
mobile source emissions model, MOVES, and extending the demonstration 
of maintenance of the ozone standard through 2025, with new MVEBs, but 
without relying on emission reductions resulting from

[[Page 34820]]

implementation of EPA's Clean Air Interstate Rule (CAIR) or Cross-State 
Air Pollution Rule (CSAPR).
    On June 9, 2011 (76 FR 33647), EPA issued a final rulemaking 
determining that the entire St. Louis, MO-IL area has attained the 1997 
8-hour ozone NAAQS based on three years of complete, quality-assured 
ozone data for the period of 2008-2010.\1\
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    \1\ Certified ozone data for 2011 demonstrates that the area 
continued to attain the 1997 8-hour ozone standard in 2011. EPA 
recognizes that the ozone data for 2007-2009 as well as 2010 and 
2011 data are impacted by the Clean Air Interstate Rule (CAIR) which 
was promulgated in 2005, but remanded to EPA in 2008. The fact that 
the data reflect some reductions associated with the remanded and 
therefore not permanent CAIR, however, is not an impediment to 
redesignation in the circumstances presented here where IEPA's 
demonstration and EPA's own modeling demonstrates that the area does 
not need reductions associated with the CAIR to attain the 1997 
ozone NAAQS.
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    On December 22, 2011 (76 FR 79579), EPA issued a rulemaking action 
proposing to approve Illinois' request to redesignate the Illinois 
portion of the St. Louis area to attainment of the 1997 8-hour ozone 
standard, as well as proposing to approve Illinois' maintenance plan 
for the area, Volatile Organic Compound (VOC) and nitrogen oxides 
(NOX) MVEBs, and VOC and NOX emissions 
inventories. This proposed rulemaking sets forth the basis for 
determining that Illinois' redesignation request meets the CAA 
requirements for redesignation to attainment for the 1997 8-hour ozone 
NAAQS. Air quality monitoring data in the St. Louis area for 2007-2009, 
2008-2010, and 2009-2011 show that this area is currently attaining the 
1997 8-hour ozone NAAQS.
    The primary background for today's action is contained in EPA's 
December 22, 2011, proposal to approve Illinois' redesignation request, 
and in EPA's June 9, 2011, final rulemaking determining that the area 
has attained the 1997 8-hour ozone NAAQS, based on complete, quality-
assured monitoring data for 2008-2010, and continuing through 2011. In 
these rulemakings, we noted that under EPA regulations at 40 CFR 50.10 
and 40 CFR part 50, appendix I, the 1997 8-hour ozone standard is 
attained when the 3-year average of the annual fourth highest daily 
maximum 8-hour average ozone concentrations is less than or equal to 
0.08 ppm at all ozone monitoring sites in the area. See 69 FR 23857 
(April 30, 2004) for further information. To support the redesignation 
of the area to attainment of the NAAQS, the ozone data must be complete 
for the three attainment years. The data completeness requirement is 
met when the 3-year average of days with valid ambient monitoring data 
is greater than 90 percent, and no single year has less than 75 percent 
data completeness, as determined in accordance with appendix I of 40 
CFR part 50. Under the CAA, EPA may redesignate a nonattainment area to 
attainment if sufficient, complete, quality-assured data are available 
demonstrating that the area has attained the standard and if the state 
meets the other CAA redesignation requirements specified in section 
107(d)(E) and section 175A.
    The December 22, 2011, proposed redesignation rulemaking provides a 
detailed discussion of how Illinois' ozone redesignation request meets 
the CAA requirements for redesignation of the Illinois portion of the 
St. Louis area. With the final approval of its VOC and NOX 
emissions inventories, Illinois has met all applicable CAA requirements 
for redesignation to attainment for the 1997 8-hour ozone NAAQS. Air 
quality monitoring in the St. Louis area for 2009-2011 shows that this 
area continues to attain the 1997 8-hour ozone NAAQS. Illinois has 
demonstrated that attainment of the 1997 8-hour ozone NAAQS will be 
maintained through 2025 with or without the implementation of CAIR or 
CSAPR. In addition, modeling conducted by EPA during the CSAPR 
rulemaking demonstrates that in both 2012 and 2014, even without taking 
into account reductions associated solely with CAIR or CSAPR, the 
counties in the St. Louis MO-IL nonattainment area will have air 
quality that attains the 1997 ozone NAAQS. Finally, Illinois has 
adopted 2008 and 2025 MVEBs that are supported by Illinois' ozone 
maintenance demonstration and adopted ozone maintenance plan.

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

    EPA initially provided a 30-day comment period for the December 22, 
2011, proposed rule. On January 20, 2012, EPA extended the comment 
period for an additional 30 days. During the comment period, we 
received comments from one individual representing the Sierra Club. 
These comments are summarized and addressed below.
    Comment 1: The commenter contends that it is inappropriate to 
redesignate the Illinois portion of the St. Louis nonattainment area to 
attainment of the 1997 8-hour ozone standard when EPA intends to 
designate the St. Louis area as nonattainment under the 2008 8-hour 
ozone standard, yet the EPA is illegally delaying the implementation of 
the 2008 8-hour ozone standard.
    Response 1: On May 21, 2012 EPA published its designations for the 
2008 standard. 77 FR 30088, 30116. EPA designated the St. Louis-St. 
Charles-Farmington, MO-IL area as nonattainment, with a classification 
of marginal. The area's status with respect to the 2008 standard, 
however, does not affect or prevent redesignation of the area to 
attainment for the 1997 standard. The 1997 standard currently remains 
in effect, and thus EPA continues to evaluate the area's designation 
status with respect to that standard. Until the 1997 8-hour ozone 
standard is revoked, it remains in effect and independent of the 2008 
8-hour ozone standard, and EPA continues to evaluate and act upon 
states' requests for redesignation with respect to the 1997 standard.
    EPA has in the past continued to redesignate areas under existing 
standards even after the adoption of new standards for the same 
pollutant. After adopting the 1997 8-hour ozone standard, EPA continued 
to redesignate areas for the 1-hour ozone standard until that standard 
was revoked. See, for example, Cincinnati, Ohio redesignation, 70 FR 
35946 (June 21, 2005). Subsequent to the adoption of the 2008 8-hour 
ozone standard, EPA has continued to redesignate for the 1997 8-hour 
ozone standard those areas attaining that ozone standard and otherwise 
meeting redesignation requirements. See, for example, Detroit, Michigan 
redesignation, 74 FR 30950 (June 29, 2009); Clearfield and Indiana 
Counties, Pennsylvania redesignation, 74 FR 11674 (March 19, 2009); 
Kewaunee County, Wisconsin redesignation 73 FR 29436 (May 21, 2008), 
and Door and Manitowoc Counties, Wisconsin redesignation, 75 FR 39635 
(July 12, 2010).
    Comment 2: The commenter states that the Jerseyville, Nilwood, 
Maryville, Wood River, and East St. Louis ozone monitors all show 
upward trends in the annual fourth highest daily maximum 8-hour ozone 
concentrations over the 2009-2011 three year period.
    Response 2: The CAA sets forth the criteria for redesignating a 
nonattainment area to attainment. Section 107(d)(3)(E) provides for 
approval of a redesignation request if, among other things, the 
Administrator determines that the area has attained the applicable 
NAAQS. A determination that an area has attained the standard is based 
on a review of monitored air quality data that meet regulatory quality-
assurance requirements for the specific purpose of comparison to the 
NAAQS. See 40 CFR part 50.10 and appendix I and 40 CFR part 58. A 
determination of attainment for ozone is

[[Page 34821]]

based on a 3-year average of data, and does not consider monitoring 
data trends or statistical analyses as criteria for determining 
attainment in evaluating a redesignation request. As discussed in 
detail in the proposed rule, the St. Louis area has monitored 
attainment of the 1997 8-hour ozone standard. See 76 FR 79582-79583 
(December 22, 2011).
    Furthermore, EPA considers data collected over a 3-year period for 
determining attainment, but not for statistically determining a 
``trend.'' It is expected that there will be year-to-year variations in 
ozone concentrations due to meteorological influences. A review of 
annual fourth highest daily maximum 8-hour ozone concentrations and 
design values over a longer time period, from 2001 (designations under 
the 1997 8-hour ozone standard was based on air quality monitoring data 
from 2001-2003) through 2011, shows an overall downward trend at each 
of the monitors. Moreover, in its maintenance demonstration the State 
has shown that the 1997 8-hour ozone standard can be maintained in the 
area through 2025.
    Comment 3 General: The commenter contends that, to demonstrate that 
the observed improvement in ozone air quality is due to the 
implementation of permanent air quality controls, EPA has relied on 
several emission control programs that are not permanent and 
enforceable. The commenter sets out several specific points to support 
this contention, which are discussed below in 3a-3d.
    Response 3 General: It is not necessary for every change in 
emissions between the nonattainment year and the attainment year to be 
permanent and enforceable. Rather, the improvement in air quality 
necessary for the area to attain the relevant NAAQS must be reasonably 
attributable to permanent and enforceable reductions in emissions. As 
discussed in the proposed rule at 76 FR 79586-79588 (December 22, 
2011), Illinois and upwind areas have implemented a number of permanent 
and enforceable regulatory control measures which have reduced 
emissions and resulted in a corresponding improvement in air quality.
    Comment 3a: The commenter contends that EPA cannot rely on the 
implementation of CSAPR, which has been stayed by court order. The 
commenter objects to EPA claims that IEPA has met its obligation under 
section 110(a)(2)(D), in part, via emission control programs 
established through CSAPR, and also objects to inclusion of CSAPR as a 
potential contingency measure in Illinois' ozone maintenance plan. In 
addition, EPA credits Illinois with NOX emission reduction 
in upwind areas that are projected to result from the implementation of 
CSAPR. Since CSAPR was stayed by the United States Court of Appeals for 
the District of Columbia Circuit on December 30, 2011, CSAPR is not 
enforceable. In addition, CSAPR cannot be assumed to be permanent 
because EPA cannot conclude that CSAPR will survive the litigation 
challenge to be subsequently decided by the court. Further, any attempt 
by EPA to claim it will replace CSAPR is of no moment because courts 
have repeatedly told EPA that it cannot use the promise of future 
action to meet current emission control requirements. See, e.g., Sierra 
Club v. EPA, 356 F.3d 296, 298 (DC Cir. 2004).
    Response 3a: Illinois has not relied on CSAPR to demonstrate that 
attainment was due to permanent and enforceable emissions reductions or 
to demonstrate that it will maintain the standard. While we did note in 
the proposal that emissions reductions resulting from the 
implementation of CSAPR would aid in maintenance of the standard, that 
statement did not provide the basis for our action. Further, contrary 
to the commenter's assertion, EPA did not credit Illinois with 
NOX emissions reductions from the implementation of CSAPR, 
nor did the State take credit for any such emissions reductions when 
demonstrating maintenance.
    In addition, modeling performed by EPA during the CSAPR rulemaking 
process also demonstrates that the counties in the St. Louis MO-IL 
ozone nonattainment area will have ozone levels below the 1997 8-hour 
standard in both 2012 and 2014 without emission reductions from CSAPR 
or CAIR, with the highest average value for any monitor in the area 
projected to be 79.6 ppb. See ``Air Quality Modeling Final Rule 
Technical Support Document,'' App. B, B-10, B-11, and B-18, which can 
be found at http://www.epa.gov/crossstaterule/pdfs/AQModeling.pdf. 
Ozone modeling performed by the Lake Michigan Air Directors Consortium 
also concludes that the St. Louis area will be able to maintain the 
ozone standard throughout the maintenance period without considering 
emission reductions from implementation of the CAIR or CSAPR.\2\
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    \2\ The Lake Michigan Air Directors Consortium modeling was 
conducted prior to EPA's promulgation of CSAPR. The subsequent 
modeling conducted by EPA during the CSAPR rulemaking provides a 
more detailed analysis of the impact upwind state emissions would, 
in the absence of CAIR, have on downwind areas projected to have 
difficulty attaining or maintaining the standard.
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    Although Illinois did list the ``Clean Air Transport Rule, after 
promulgation by USEPA'' as a possible contingency measure in the 
maintenance plan, this measure is only one of many that may be selected 
should the contingency plan be triggered. EPA has concluded, in its 
consideration of the maintenance plan contingency measures, that there 
are other contingency measures sufficient to satisfy the requirements 
of 175A, without consideration of CSAPR.
    The commenter also claims that EPA relies, in part, on emission 
control programs established through CSAPR to determine that IEPA has 
met its obligation under section 110(a)(2)(D). Section 110(a)(2)(D) of 
the CAA requires that SIPs contain measures to prevent sources in a 
state from significantly contributing to air quality problems in 
another state. While EPA noted in the proposed rule that programs such 
as the NOX SIP Call, CAIR, and CSAPR were established to 
address transport of air pollutants, we also clearly stated that the 
section 110(a)(2)(D) requirements for a state are not linked with a 
particular nonattainment area's designation and classification. 
Further, EPA concludes that the requirements linked with a particular 
nonattainment area's designation and classification are the relevant 
measures to evaluate in reviewing a redesignation request. Therefore, 
because the section 110(a)(2)(D) requirements apply to a state 
regardless of the designation of any one particular area in the state, 
EPA further concludes that these requirements should not be construed 
to be applicable requirements for purposes of redesignation. EPA is not 
taking any action, in this rulemaking, to determine whether the State 
of Illinois has satisfied the requirements of 110(a)(2)(D) with respect 
to the 1997 ozone NAAQS.
    Comment 3b: The commenter asserts that EPA erred in concluding that 
emission reductions resulting from regulations developed in response to 
the NOX SIP Call are permanent and enforceable. The 
commenter asserts that the NOX SIP Call cannot satisfy a 
requirement that requires reductions to be permanent and enforceable 
because this program has been replaced and therefore effectively no 
longer exists. The commenter also asserts that because the 
NOX SIP Call is a cap-and-trade program no actual reductions 
are required from the emission sources in the St. Louis nonattainment 
area. The commenter argues that to the extent any reductions were once 
required, they could have happened only in areas downwind that have 
little to no impact on the St. Louis area nonattainment.

[[Page 34822]]

Finally the commenter asserts that the DC Circuit Court of Appeals 
recently held that EPA cannot use cap-and-trade programs to satisfy an 
area-specific statutory mandate. See NRDC v. EPA, 571 F.3d 1245, 1257 
(DC Cir. 2009).
    Response 3b: EPA disagrees with the commenter's position that 
emission reductions associated with the NOX SIP Call cannot 
be considered to be permanent and enforceable. The commenter's first 
argument--that the reductions are not permanent and enforceable because 
the NOX SIP Call has been replaced--is based on a 
misunderstanding of the relationship between CAIR and the 
NOX SIP Call. While the CAIR ozone-season trading program 
replaced the ozone-season NOX trading program developed in 
the NOX SIP Call (70 FR 25290), nothing in CAIR relieved 
states of their NOX SIP Call obligations. In fact, in the 
preamble to CAIR, EPA emphasized that the states and certain units 
covered by the NOX SIP Call but not CAIR must still satisfy 
the requirements of the NOX SIP Call. EPA provided guidance 
regarding how such states could meet these obligations.\3\ In no way 
did EPA suggest states could disregard their NOX SIP Call 
obligations. (70 FR 25290). For NOX SIP Call states, the 
CAIR NOX ozone season program provides a way to continue to 
meet the NOX SIP Call obligations for electric generating 
units (EGUs) and large non-electric generating units (nonEGUs). In 
addition, the anti-backsliding provisions of 40 CFR 51.905(f) 
specifically provide that the provisions of the NOX SIP 
Call, including the statewide NOX emission budgets, continue 
to apply. In sum, the requirements of the NOX SIP Call 
remain in force. They are permanent and enforceable as are state 
regulations developed to implement the requirements of the 
NOX SIP Call.
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    \3\ EPA guidance regarding the NOX SIP Call 
transition to CAIR can be found at http://www.epa.gov/airmarkets/progsregs/cair/faq-10.html. EPA guidance regarding the 
NOX SIP Call transition for CSAPR can be found at http://www.epa.gov/crossstaterule/faqs.html.
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    EPA also disagrees with the commenter's second argument--that the 
reductions associated with the NOX SIP Call cannot be 
considered permanent and enforceable because the NOX SIP 
Call is a trading program. There is no support for the commenter's 
argument that EPA must ignore all reductions achieved by the 
NOX SIP Call simply because the mechanism used to achieve 
the reductions is an emissions trading program. As a general matter, 
trading programs establish mandatory caps on emissions and permanently 
reduce the total emissions allowed by sources subject to the programs. 
The emission caps and associated controls are enforced through the 
associated SIP rules or Federal Implementation Plans (FIPs). Any 
purchase of allowances and increase in emissions by a utility 
necessitates a corresponding sale of allowances and reduction in 
emissions by another utility. Given the regional nature of ozone, the 
emission reductions will have an air quality benefit that will 
compensate, at least in part, for the impact of any emission increase.
    In addition, the case cited by the commenter, NRDC v. EPA, 571 F.3d 
1245 (DC Cir. 2009), does not support the commenter's position. That 
case addressed EPA's determination that the nonattainment Reasonably 
Available Control Technology (RACT) requirement was satisfied by the 
NOX SIP Call trading program. The court held that because 
EPA had not demonstrated that the trading program would result in 
sufficient reductions within a nonattainment area, its determination 
that the program satisfied RACT (a nonattainment area requirement) was 
not supported. Id. 1256-58. The court explicitly noted that EPA might 
be able to reinstate the provision providing that compliance with the 
NOX SIP Call satisfies NOX RACT for EGUs for 
particular nonattainment areas if, upon conducting a technical 
analysis, it could demonstrate that the NOX SIP Call results 
in greater emissions reductions in a nonattainment area than would be 
achieved if RACT-level controls were installed in that area. Id. at 
1258. In this case, EPA's comparison of emissions in 2002 and 2008 in 
this rulemaking necessarily looked only at changes in emissions ``in 
the nonattainment area.'' As such, the commenter's reliance on NRDC v. 
EPA is misplaced.
    Comment 3c: The commenter contends that the Illinois State rules 
are not permanent and enforceable. The commenter asserts that Illinois' 
consumer products and Architectural and Industrial Maintenance Coatings 
(AIM) rules are not permanent and enforceable components of the 
Illinois SIP. The commenter contends that these rules have only been 
adopted by the State, and that EPA has not yet approved them into the 
Illinois SIP. The commenter claims that, until they are approved by EPA 
and incorporated into the SIP, they cannot be relied upon for the 
purposes of redesignation to attainment of the standard. The commenter 
claims that for EPA to rely on these rules for the redesignation, it 
must approve them into the SIP in conjunction with the redesignation.
    Response 3c: It is not necessary for every change in emissions 
between the nonattainment year and the attainment year to be permanent 
and enforceable. Rather, the improvement in air quality necessary for 
the area to attain must be reasonably attributable to permanent and 
enforceable reductions in emissions. As discussed in the proposed rule 
at 76 FR 79586-79588 (December 22, 2011), Illinois and upwind areas 
have implemented a number of permanent and enforceable regulatory 
control measures which have reduced emissions and resulted in a 
corresponding improvement in air quality sufficient to demonstrate 
attainment and maintenance. Even if EPA does not finalize action on the 
Illinois consumer products and AIM rules before completing action on 
the redesignation, these emissions reductions are not necessary to 
demonstrate that the improvement in air quality is reasonably 
attributable to permanent and enforceable reductions in emissions. It 
should be noted, however, that EPA proposed to approve the Illinois 
consumer products and AIM rules on October 27, 2011, at 76 FR 66663. 
EPA received no comments on the proposal and we are currently in the 
process of finalizing action on the rules.
    Comment 3d: The commenter asserts that the use of 2008 air quality 
data is inappropriate to demonstrate that the attainment of the 1997 8-
hour ozone standard is due to the implementation of permanent and 
enforceable emission reductions. EPA documented the changes in 
emissions between 2002 and 2008 to demonstrate that the observed ozone 
air quality improvement is due to permanent and enforceable emissions 
reduction during this period. The commenter claims that this is 
unacceptable for a number of reasons.
    First, the commenter asserts that EPA has done nothing to connect 
the emissions and air quality impacts, and EPA has not conducted 
analyses to prove that emission reductions between 2002 and 2008 have 
led to reduced ozone concentrations and attainment of the 1997 8-hour 
ozone standard.
    Second, the commenter argues that using a single attainment year, 
2008, is arbitrary because the impact of cap-and-trade emission control 
programs, such as the NOX SIP Call and CSAPR, can cause 
emissions to vary over time as sources buy, sell, and trade emission 
allowances.
    Third, the commenter claims that the choice of 2008 is further 
problematic because 2008 was the beginning of a large economic 
recession. The commenter contends that this resulted in decreased 
electricity demand, decreased automobile, truck and shipping traffic, 
and decreased factory

[[Page 34823]]

production. The commenter objects to EPA's conclusion that monitored 
changes in ozone levels between 2002 and 2008 were due to the 
implementation of permanent and enforceable emission controls rather 
than to changes in meteorology, economic conditions, or temporary or 
voluntary (not enforceable) emissions reductions. The commenter 
contends that EPA has not provided an analysis showing that the 
recession was not the cause of the 2002-2008 emission reduction and 
observed air quality improvement.
    Finally, the commenter claims that EPA has not shown that the 2008 
emissions inventory reflects permanent and enforceable emission 
reductions occurring between 2002 and 2008, and states that the 2008 
emissions inventory appears to be the ``actual'' or the ``projected'' 
emissions from an unidentified group of sources. The commenter argues 
that there is a significant difference between what sources actually 
emit and what sources are allowed to emit, and that the IEPA and EPA 
have incorrectly assumed allowable emissions are equal to actual 
emissions.
    Response 3d: EPA's conclusion here is fully supported by the facts 
and applicable legal criteria. EPA's longstanding practice and policy 
\4\ provides for states to demonstrate permanent and enforceable 
emissions reductions by comparing nonattainment area emissions 
occurring during the nonattainment period (represented by emissions 
during one of the years during the 3-year nonattainment period on which 
the area's nonattainment designated was based,\5\ in this case 2002) 
with emissions in the area during the attainment period (represented by 
emissions during one of the 3 attainment years, in this case 2008, 
which is included in the 3-year period, 2007-2009, that the State used 
to show attainment with 1997 8-hour ozone standard). A determination 
that an area has attained the 1997 8-hour ozone standard is based on an 
objective review of air quality data in accordance with 40 CFR 50.10 
and part 50, appendix I, based on 3 complete, consecutive calendar 
years of quality-assured air quality monitoring data. In the State's 
redesignation request, Illinois considered data for the 2007-2009 time 
period to demonstrate attainment. In EPA's determination of attainment 
and proposed approval of the redesignation request, EPA considered data 
for the 2008-2010 time period, which was the most recent quality-
assured, certified data available. See 76 FR 33647 (June 9, 2011), 76 
FR 79582-79583 (December 22, 2011). In this final rulemaking, EPA is 
also considering continued attainment based on complete, quality-
assured certified data for 2009-2011. Therefore, selecting 2008 as a 
representative attainment year, and comparing emissions for this year 
to those for a representative year during the nonattainment period, 
2002, is an appropriate and long-established approach that demonstrates 
the occurrence of emission reductions in the area between the years of 
nonattainment and attainment. These reductions therefore, can be seen 
to account for the observed air quality improvement.
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    \4\ See September 4, 1992 memorandom from John Calcagni entitled 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' pp. 4 and 8-9.
    \5\ The nonattainment designation of the St. Louis area for the 
1997 8-hour ozone standard was based on 2001-2003 ozone data.
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    With respect to the commenter's assertion that EPA has conducted no 
analyses to prove that emission reductions between 2002 and 2008 led to 
reduced ozone concentrations, as noted above, comparing emissions for a 
representative nonattainment year to emissions for a representative 
attainment year is consistent with longstanding practice and EPA policy 
for making such a demonstration. The CAA does not specifically require 
the use of modeling in making any such demonstration and it has not 
been the general practice to do so.
    EPA disagrees with the commenter's contention that using a single 
attainment year is arbitrary due to year-to-year variations in 
emissions levels resulting from cap-and-trade programs. As a general 
matter, trading programs establish mandatory caps on emissions and 
permanently reduce the total emissions allowed by sources subject to 
the programs. The emission caps and associated controls are enforced 
through the associated SIP rules or FIPs. Any purchase of allowances 
and increase in emissions by a utility necessitates a corresponding 
sale of allowances and reduction in emissions by another utility. Given 
the regional nature of ozone, the emission reduction will have an air 
quality benefit that will compensate, at least in part, for the impact 
of any emission increase.
    With respect to NOX SIP Call reductions within the St. 
Louis area, there is no evidence of significant temporal variation in 
emissions levels. In fact, actual emissions from NOX SIP 
Call sources in the St. Louis area have not varied much from year-to-
year over the 2003-2011 time period. The largest emitters in the St. 
Louis area that are covered by the NOX SIP Call are 
operating near full capacity. Even if all of the large EGUs and large 
nonEGUs begin emitting at full capacity, emissions would not increase 
significantly. Further, these sources do not have the type of emissions 
controls that can simply be ``shut off.''
    While the commenter expressed concerns that an economic downturn 
was responsible for the improvement in air quality, the commenter has 
made no demonstration that the reduction in emissions and observed 
improvement in air quality is due to an economic recession, changes in 
meteorology, or temporary or voluntary emissions reductions. Also, as 
noted previously, the CAA does not require modeling to make any such 
demonstration.
    Finally, longstanding practice and EPA policy support the use of 
actual emissions when demonstrating permanent and enforceable emissions 
reductions. Actual emissions are more reflective of emissions that in 
reality contribute to monitored ozone concentrations. Sources seldom, 
if ever, emit at maximum allowable levels and assuming that all sources 
operate at maximum capacity at the same time would grossly overestimate 
emissions levels. For this reason EPA believes actual emissions are the 
appropriate emissions to consider when comparing nonattainment year 
emissions with attainment year emissions.
    Comment 4: The commenter claims that EPA has not conducted an 
adequate analysis of the effect that redesignation to attainment will 
have on attainment and maintenance of other NAAQS under section 110(l) 
of the CAA. The commenter asserts that EPA has failed to conduct an 
adequate analysis of the ozone redesignation impacts with respect to 
the 1997 annual fine particulate (PM2.5) NAAQS, the 2006 24-
hour PM2.5 NAAQS, the 1-hour NOX (NO2) 
NAAQS, the 1-hour sulfur dioxide (SO2) NAAQS, and the 2008 
8-hour ozone NAAQS.
    Response 4: Section 110(l) provides in part: ``The Administrator 
shall not approve a revision of a plan if the revision would interfere 
with any applicable requirement concerning attainment and reasonable 
further progress * * *, or any other applicable requirement of this 
chapter.'' As a general matter, EPA must and does consider section 
110(l) requirements for every SIP revision, including whether the 
revision would ``interfere with'' any applicable requirement. See, 
e.g., 70 FR 53, 57 (January 3, 2005); 70 FR 17029, 17033 (April 4, 
2005); 70 FR 28429, 28431 (May 18, 2005); and 70 FR 58119, 58134 
(October 5, 2005). The Illinois

[[Page 34824]]

redesignation request and maintenance plan for the 1997 8-hour ozone 
standard neither revises nor removes any existing emissions limit for 
any NAAQS, nor does it alter any existing control requirements. On that 
basis, EPA concludes that the redesignation will not interfere with 
attainment or maintenance of any of these air quality standards. The 
commenter does not provide any information in its comment to indicate 
that approval of this redesignation would have any impact on the area's 
ability to comply with the 1997 annual PM2.5 NAAQS, the 2006 
24-hour PM2.5 NAAQS, the 1-hour NO2 NAAQS, the 1-
hour SO2 NAAQS, or the 2008 8-hour ozone NAAQS. In fact, the 
maintenance plan provided with the State's submission demonstrates a 
decline in ozone precursor emissions over the timeframe of the initial 
maintenance period. As a result, the redesignation does not relax any 
existing rules or limits, nor will the redesignation alter the status 
quo air quality.\6\ The commenter has not explained why the 
redesignation might interfere with attainment of any standard or with 
satisfaction of any other requirement, and EPA finds no basis under 
section 110(l) for EPA to disapprove the SIP revision at issue or to 
disapprove the requested redesignation.
---------------------------------------------------------------------------

    \6\ EPA notes that the St. Louis area does not have violating 
monitors for the 1997 annual PM2.5 NAAQS, 2006 24-hour 
PM2.5 NAAQS, or the 1-hour NOX NAAQS, and that 
this area has not been designated nonattainment for 2006 24-hour 
PM2.5 NAAQS, the 1-hour NOX NAAQS, or the 1-
hour SO2 NAAQS.
---------------------------------------------------------------------------

    Comment 5a: The commenter asserts that the 2002 emissions inventory 
that EPA is proposing to approve as meeting the emission inventory 
requirement of section 182(a)(1) of the CAA is inadequate and EPA 
cannot approve this emissions inventory. The commenter notes that the 
emissions inventory is 10 years old. In addition, the commenter states 
that portions of the emissions inventory were estimated, as opposed to 
being actual emissions, and claims that EPA has not included a 
``comprehensive'' emissions inventory in the docket, EPA has only 
included a summary of the emissions inventory. The commenter asserts 
that EPA must place a comprehensive emissions inventory, which includes 
information for each point source, in the docket to allow the public to 
review the inventory and comment on it.
    Response 5a: Illinois developed a 2002 comprehensive inventory to 
meet the requirement of section 182(a)(1) of the CAA in accordance with 
EPA's November 18, 2002, policy memorandum from Lydia N. Wegman 
entitled ``2002 Base Year Emission Inventory SIP Planning: 8-hr Ozone, 
PM2.5 and Regional Haze Programs,'' and EPA's policy Phase 2 
ozone implementation rule published on November 29, 2005 (70 FR 71612, 
71664). EPA notes that Illinois submitted the 2002 inventory on June 
21, 2006, and at that time, 2002 was the most current emissions 
inventory available for the nonattainment area.
    The commenter observes that portions of the emissions inventory 
were estimated. This is entirely consistent with accepted EPA 
procedures for emissions inventory development procedures. It is common 
practice, and consistent with EPA emissions inventory guidance, for 
states to estimate emissions for any given year using related activity 
factors or to project emissions based on information from prior years 
and associated activity growth factors. See ``Emissions Inventory 
Guidance for Implementation of Ozone and Particulate Matter National 
Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations,'' 
dated August 2005. For mobile sources, it is standard and accepted 
practice for states to estimate emissions using an EPA- approved 
emissions model coupled with the output of a transportation model, 
which provides traffic levels by roadway and activity type. The 
commenter provided no information or specific details that show that 
the 2002 inventory was inaccurate.
    With respect to the commenter's concern regarding the availability 
of the emissions inventory submittal in the docket, we acknowledge that 
the inventory was unintentionally omitted from the electronic docket at 
www.regulations.gov. However, the document was available to the public 
in hard copy at the EPA Region 5 office, and had the commenter 
contacted the Region, the inventory could have been provided. The 
inventory has since been added to the electronic docket.
    While we believe the 2002 inventory submitted by the State meets 
the inventory requirements of both section 182(a)(1) and section 
172(c)(3) of the CAA, EPA notes that the State also submitted a 
comprehensive 2008 emissions inventory to serve as the attainment year 
inventory as part of the maintenance plan. EPA's longstanding view, as 
set forth in the September 4, 1992 memorandom from John Calcagni 
entitled ``Procedures for Processing Requests to Redesignate Areas to 
Attainment'' (Calcagni memorandum) is that the ``requirements for an 
emission inventory [under section 172(c) or 182(a)(1)] will be 
satisfied by the inventory requirements of the maintenance plan.'' See 
Calcagni memorandum at 6.
    When preparing the comprehensive 2008 emissions inventory, Illinois 
compiled point source information from the 2008 annual emissions 
reports submitted to IEPA by sources and EPA's Clean Air Markets 
Division database for electric utilities. Area source emissions were 
calculated using the most recently available methodologies and 
emissions factors from EPA along with activity data (population, 
employment, fuel use, etc.) specific to 2008. Non-road mobile source 
emissions were calculated using EPA's NONROAD emissions model. In 
addition, emissions estimates were calculated for commercial marine 
vessels, aircraft, and railroads, three non-road categories not 
included in the NONROAD model. On-road mobile source emissions were 
calculated using EPA's MOVES emissions model with 2008 Vehicle Miles 
Traveled (VMT) data provided by Illinois Department of Transportation 
(IDOT).
    Therefore, in actuality, the State has more than satisfied the CAA 
inventory requirements by its submittal of two inventories that meet 
the applicable emissions inventory requirement.
    Comment 5b: The commenter asserts that emissions calculations for 
on-road mobile sources fail to consider the use of gasoline containing 
up to 15 volume percent ethanol (E15).
    Response 5b: In 2010 and 2011, EPA granted partial waivers for use 
of E15 in model year (MY) 2001 and newer light-duty motor vehicles (75 
FR 68094 and 76 FR 4662). As discussed in the waiver decisions, there 
may be some small emission impacts from the use of E15. E15 is expected 
to cause a small immediate emissions increase in NOX 
emissions. However, due to its lower volatility than the E10 currently 
in-use, its use is also expected to result in lower evaporative 
emissions. Other possible emissions impacts may be from the misfueling 
of E15 in vehicles or engines for which its use is not approved, i.e., 
MY2000 and older motor vehicles, heavy-duty engines and vehicles, 
motorcycles and all nonroad engines, vehicles, and equipment. EPA has 
promulgated a separate rule dealing specifically with the mitigation of 
misfueling to reduce the potential emissions impacts from misfueling 
(76 FR 44406).
    However, the E15 partial waivers do not require that E15 be made or 
sold and it is unclear if and to what extent E15 may even be used in 
Illinois. Even if E15 is introduced into commerce in Illinois, 
considering the likely small and

[[Page 34825]]

offsetting direction of the emission impacts, the limited set of motor 
vehicles approved for its use, and the measures required to mitigate 
misfueling, EPA believes that any potential emission impacts of E15 
will be less than the maintenance plan safety margin by which Illinois 
shows maintenance.
    Comment 6: The commenter contends that EPA cannot approve the ozone 
redesignation because Illinois' VOC RACT rules have not been approved 
in conjunction with the approval of the ozone redesignation. The 
commenter pointed to EPA's statement in the proposed approval of the 
redesignation that it would take action on Illinois' VOC RACT rules in 
a separate rulemaking. The commenter states that approval ``in a 
separate rule'' is not approval ``in conjunction'' with rulemaking on a 
redesignation, and that this would be a departure from EPA's previous 
practice of approving needed SIP revisions in the same final rule as a 
redesignation. The commenter also points to the Sixth Circuit Court of 
Appeals decision in Wall v. EPA, in which the Court stated that ``the 
EPA abused its discretion when it determined that it could redesignate 
the Cincinnati metropolitan area as achieving attainment before Ohio 
had fully adopted all RACT rules of Part D, Subpart 2 of the CAA.'' 
Wall v. EPA, 265 F.3d 426,442 (6th Cir. 2001). The commenter claims 
that RACT measures must be contained in SIPs submitted with respect to 
redesignation requests.
    Response 6: EPA disagrees with the commenter's position that VOC 
RACT rules must be approved in the same final rule as the 
redesignation. The commenter's contention is without basis in either 
the law or common sense. EPA acknowledged in its proposed redesignation 
at 76 FR 79585, that approval of IEPA's VOC RACT submittal is a 
prerequisite for approval of the redesignation of the Illinois portion 
of the St. Louis area to attainment of the 1997 8-hour ozone standard. 
This simply requires that EPA approve the VOC RACT rules on or before 
finalizing approval of the redesignation. EPA approved the Illinois VOC 
RACT submittal on March 23, 2012 (77 FR 16940). Therefore, this 
prerequisite to redesignation has been met.
    Comment 7: The commenter contends that EPA cannot approve the 
State's ozone redesignation request because the State and EPA have not 
satisfied all part D requirements. The specific points of contention 
raised by the commenter are discussed separately below.
    Comment 7a: The commenter disagrees with EPA's conclusion that an 
area can be redesignated to attainment of a NAAQS regardless of the 
status of the State's SIP relative to the requirements of section 
110(a)(2) of the CAA. The commenter argues that EPA's position does not 
make sense given that the State's infrastructure SIP will apply to the 
``former'' nonattainment area once it is redesignated to attainment. To 
the commenter, it is clear that Congress wanted to ensure that there is 
a valid infrastructure SIP in place to protect areas that are being 
redesignated to attainment.
    Response 7a: EPA stands by its position that section 110 elements 
that are not connected with nonattainment plan submissions and not 
linked with an area's attainment status are not applicable requirements 
for purposes of redesignation. A state remains subject to these 
requirements after an area is redesignated to attainment. We conclude 
that only the section 110 and part D requirements which are linked with 
a particular area's designation and classification are the relevant 
measures which we may consider in evaluating a redesignation request. 
This approach is consistent with EPA's existing policy on applicability 
of conformity and oxygenated fuels requirements for redesignation 
purposes, as well as with section 184 ozone transport requirements. See 
Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-
53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-
Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, 
Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the 
discussion on this issue in the Cincinnati, Ohio ozone redesignation 
(65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania ozone 
redesignation (66 FR 50399, October 19, 2001), and in the St. Louis 1-
hour ozone redesignation 68 FR 25418, 25426-27 (May 12, 2003). Both the 
6th and 7th Circuits have agreed that the CAA provides EPA with leeway 
to determine what is an ``applicable requirement'' for purposes of 
redesignation. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See 
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding EPA's 
interpretation of ``applicable requirements'' with respect to 
conformity.
    In any event, on July 13, 2011, EPA approved elements of the 
Illinois submittal to meet the infrastructure requirements of sections 
110(a)(1) and (2) of the CAA for the 1997 8-hour ozone standard. See 76 
FR 41075. Specifically, EPA approved the following infrastructure 
elements: emission limits and other control measures, ambient air 
quality monitoring and data system, enforcement of SIP measures, 
interstate and international pollution abatement, adequate resources, 
stationary source monitoring system, emergency power, future SIP 
revisions, consultation with government officials, public notification, 
air quality modeling and data, permitting fees, and consultation and 
participation by affected local entities. Also note that Federally 
promulgated Prevention of Significant Deterioration (PSD) rules are in 
place in Illinois. For all these reasons, EPA concludes that the SIP 
elements applicable for purposes of redesignation have been approved by 
EPA.
    Comment 7b: The commenter contends that EPA cannot redesignate the 
Illinois portion of the St. Louis nonattainment area to attainment of 
the 1997 8-hour ozone standard because section 172(c) of the CAA 
requires SIPs to include a Reasonable Further Progress (RFP) plan, an 
ozone attainment demonstration, contingency measures, nonattainment New 
Source Review (NSR) rules, and Reasonably Available Control Measures 
(RACM)/RACT rules and EPA has not approved these items into the SIP for 
the Illinois portion of the St. Louis ozone nonattainment area. The 
commenter disagrees with EPA's conclusions that these CAA requirements 
are no longer applicable to an area after it has achieved attainment of 
the NAAQS. In addition, the commenter disagrees with EPA's conclusion 
that, for an ozone nonattainment area, the CAA section 172(c)(3) SIP 
requirement for a comprehensive, accurate, and current emissions 
inventory is superseded by the section 182(a)(1) emission inventory 
requirement. Therefore, the commenter believes that the EPA has not 
adequately addressed this SIP requirement when it concludes that 
Illinois has met all SIP requirements applicable to the Illinois 
portion of the St. Louis ozone nonattainment area for purposes of 
redesignation to attainment of the 1997 8-hour ozone standard.
    Response 7b: Under EPA's Clean Data regulation, 40 CFR 51.918 (1997 
8-hour ozone), an EPA rulemaking determination that an area is 
attaining the relevant standard suspends the area's obligations to 
submit an attainment demonstration, RACM, RFP, contingency measures, 
and other planning requirements related to attainment for as long as 
the area continues to attain. See 70 FR 71702 (November 29, 2005). This 
regulation, which embodies EPA's interpretation under its ``Clean Data 
Policy,'' has been

[[Page 34826]]

upheld by the DC Circuit. NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009).\7\
---------------------------------------------------------------------------

    \7\ See also Sierra Club v. EPA, 99 F. 3d 1551 (10th Cir. 1996); 
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); and Our Children's 
Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005) 
(memorandum opinion).
---------------------------------------------------------------------------

    Because EPA determined that the St. Louis area has attained the 
1997 8-hour ozone standard (see 76 FR 33647, June 9, 2011) and because 
the area continues to meet that standard, the State is not currently 
obligated to submit an attainment demonstration, RACM, RFP, contingency 
measures, and other planning requirements related to attainment.
    In addition, in the context of redesignations, EPA has interpreted 
requirements related to attainment as not applicable for purposes of 
redesignation. For example, in the General Preamble for implementation 
of Title 1 of the CAA 1990 amendments EPA stated that:

[t]he section 172(c)(9) requirements are directed at ensuring RFP 
and attainment by the applicable date. These requirements no longer 
apply when an area has attained the standard and is eligible for 
redesignation. Furthermore, section 175A for maintenance plans * * * 
provides specific requirements for contingency measures that 
effectively supersede the requirements of section 172(c)(9) for 
these areas. ``General Preamble for the Interpretation of Title I of 
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR 
13498, 13564 (April 16, 1992).

See also Calcagni memorandum at 6 (``The requirements for reasonable 
further progress and other measures needed for attainment will not 
apply for redesignations because they only have meaning for areas not 
attaining the standard.'').
    With respect to the RACT requirement, EPA approved the Illinois VOC 
RACT submittal on March 23, 2012 (77 FR 16940), and granted Illinois a 
waiver from the requirement to submit RACT rules under section 182(f) 
of the CAA on February 22, 2011 (76 FR 9655).
    With respect to emissions inventories, by meeting the section 
182(a)(1) emission inventory requirement, the State has also met the 
section 172(c)(3) requirement for a comprehensive, accurate, and 
current emissions inventory. Further, redesignation policy states that 
emissions inventory requirements of section 172(c) of the CAA are 
satisfied by the inventory requirements of the maintenance plan. See 
the Calcagni memorandum at 6.
    With respect to the nonattainment NSR requirement, the issue is 
moot because EPA has approved the Illinois nonattainment NSR SIP. 
Nonetheless, since PSD requirements will apply after redesignation, 
areas being redesignated need not comply with the requirement that a 
part D NSR program be approved prior to redesignation, provided that 
the area demonstrates maintenance of the NAAQS without a part D NSR 
program. A more detailed rationale for this view is described in a 
memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation, dated October 14, 1994, entitled, ``Part D New Source Review 
Requirements for Areas Requesting Redesignation to Attainment'' 
(Nichols memorandum). Illinois has demonstrated that the St. Louis area 
will be able to maintain the 1997 8-hour ozone standard without a part 
D NSR program in effect; therefore, the State need not have a fully 
approved part D NSR program prior to approval of the redesignation 
request. This issue is discussed in greater detail below in response to 
Comment 7d. Upon redesignation, the PSD program will apply. See 
Greenbaum v. EPA, 370 F.3d 527, 536 (6th Cir. 2004) (``It would make 
little sense for [part D NSR] to be included in the post-attainment 
SIP, as the Clean Air Act * * * explicitly states that attainment area 
SIPs must include a PSD program.'')
    Comment 7c: With further regard to contingency measure requirements 
of the CAA, the commenter contends that EPA is incorrect to conclude 
that contingency measures are inapplicable once an area reaches 
attainment of the NAAQS. The commenter asserts that contingency 
measures must be in place so that, if an area monitor shows a violation 
of the NAAQS in the future, that violation of the NAAQS is quickly 
addressed, minimizing the number of people that will be harmed by air 
quality levels above the NAAQS.
    Response 7c: As set forth in detail in Response 7b, the 
nonattainment area contingency measure requirements of section 
172(c)(9) are directed at ensuring RFP and attainment by the applicable 
date. These nonattainment area requirements no longer apply after an 
area has attained the standard and the area has been redesignated to 
attainment. Under section 175A of the CAA, maintenance plans must 
contain contingency provisions, ``as deemed necessary by the 
Administrator,'' and it is these contingency measures that apply to the 
area after redesignation to attainment. Illinois included such 
provisions in its maintenance plan which EPA is approving in this 
action.
    Comment 7d: The commenter, although acknowledging that EPA has 
certified that it has approved Illinois' nonattainment NSR rules, takes 
issue with EPA's related conclusion that an area being redesignated to 
attainment of a NAAQS need not have fully approved part D NSR rules, 
since PSD requirements of the CAA would apply after redesignation to 
attainment. The commenter contends that this EPA conclusion was 
explicitly rejected by the Court in Greenbaum v. EPA, 370 F.3d 527, 534 
(6th Cir. 2004). The commenter asserts that without an approved NSR 
program, there can be no redesignation to attainment of the NAAQS. The 
commenter believes that this is true, because if a redesignated area 
violates the NAAQS in the future, all provisions that are contained in 
the state's nonattainment SIP, including NSR rules, would need to 
become applicable again.
    Response 7d: Part D NSR would not be retained in the SIP as a 
section 175A(d) contingency measure. As clearly stated in the Nichols 
memorandum, ``EPA believes it is reasonable to interpret `measure,' as 
used in section 175A(d), not to include part D NSR.'' Congress used the 
undefined term ``measure'' differently in different provisions of the 
CAA, which indicates that the term is susceptible to more than one 
interpretation and that EPA has the discretion to interpret it in a 
reasonable manner in the context of section 175A. See Greenbaum v. 
United States EPA, 370 F. 3d 527, 535-38 (6th Cir. 2004). (Court 
``find[s] persuasive the EPA's argument that the very nature of the NSR 
permit program supports its interpretation that it is not intended to 
be a contingency measure pursuant to section 175A(d).'') It is 
reasonable to interpret ``measure'' to exclude part D NSR in this 
context because PSD, a program that is the corollary of part D NSR for 
attainment areas, goes into effect in lieu of part D NSR upon 
redesignation. PSD requires that new sources demonstrate that emissions 
from their construction and operation will not cause or contribute to a 
violation of any NAAQS or PSD increment. The State has demonstrated 
that the area will be able to maintain the standard without part D NSR 
in effect, and the State's PSD program will become effective in the 
area upon redesignation to attainment. See the rationale set forth at 
length in the Nichols Memorandum. See also the discussions of why full 
approval and retention of NSR is not required in redesignation actions 
in the following redesignation rulemakings: 60 FR 12459, 12467-12468 
(March 7, 1995) (Redesignation of Detroit, MI); 61 FR 20458, 20469-
20470 (May 7, 1996) (Cleveland-Akron-Lorrain, OH); 66 FR 53665, 53669 
(October 23, 2001)

[[Page 34827]]

(Louisville, KY); 61 FR 31831, 31836-31837 (June 21, 1996) (Grand 
Rapids, MI). Contrary to the commenter's assertion, the Greenbaum court 
declined to reach the issue of whether full approval of a part D NSR 
program is required prior to redesignation. See Greenbaum, 370 F. 3d at 
534-35.
    Comment 8: The commenter generally asserts that Illinois lacks a 
fully approved maintenance plan complying with the requirements of 
section 175A of the CAA. The commenter's specific arguments supporting 
this assertion follow.
    Comment 8a(1): The commenter asserts that the contingency measures 
contained in Illinois' maintenance plan do not provide for prompt 
correction of violations of the 1997 8-hour ozone standard. The 
commenter believes that neither the ``Level I'' nor the ``Level II'' 
response occurs on a prompt schedule as required by section 175A of the 
CAA, and that several of the potential contingency measures are 
inappropriate, inadequate, or unacceptably vague. The commenter notes 
that after the determination of a Level I trigger \8\ event, Illinois 
has committed to adopt needed emission control measures within 18 
months and has committed to implement the adopted emission control 
measures within 24 months after adoption. The commenter also notes that 
after the determination of a Level II trigger \9\ event, the 
maintenance plan contains no specific emission control commitments, but 
that Illinois will work with Missouri to conduct a study to determine 
the causes of the ozone standard violation and the emission control 
measures necessary to mitigate the air quality problem, with 
implementation of adopted emission controls to occur within 18 months 
of the determination of the Level II event. The commenter contends that 
the implementation schedules for the Level I and II triggers are 
unacceptably long and not in keeping with the prompt response timing 
required by section 175A of the CAA.
---------------------------------------------------------------------------

    \8\ A Level I response is triggered in the event that: (1) The 
annual fourth highest daily maximum 8-hour ozone concentration at 
any monitoring site in the St. Louis area exceeds 84 parts per 
billion (ppb) in any year; or, (2) VOC or NOX emissions 
increase more than 5 percent above the levels contained in the 
attainment year (2008) emissions inventory for the Illinois portion 
of the St. Louis ozone nonattainment area.
    \9\ A Level II response is triggered in the event that a 
violation of the 1997 8-hour ozone standard is monitored at any 
monitoring site in the St. Louis area.
---------------------------------------------------------------------------

    Response 8a(1): The commenter overlooks the provisions of the CAA 
applicable to contingency measures. Section 175(A(d) provides that 
``[e]ach plan revision submitted under this section shall contain such 
contingency provisions as the Administrator deems necessary to assure 
that the state will promptly correct any violation of the standard 
which occurs after the redesignation of the area as an attainment 
area.'' (emphasis added). Thus Congress gave EPA discretion to evaluate 
and determine the contingency measures EPA ``deems necessary'' to 
assure that the state will promptly correct any subsequent violation. 
EPA has long exercised this discretion in its rulemakings on section 
175A contingency measures in redesignation maintenance plans, allowing 
as contingency measures commitments to adopt and implement in lieu of 
fully adopted contingency measures, and finding that implementation 
within 18 months of a violation complies with the requirements of 
section 175A. See recent redesignations, e.g. Indianapolis, IN 
PM2.5 annual standard (76 FR 59512), Lake and Porter 
Counties, IN 8-hour ozone standard (75 FR 12090), and Northwest Indiana 
PM2.5 annual standard (76 FR 59600). Section 175A does not 
establish any deadlines for implementation of contingency measures 
after redesignation to attainment. It also provides far more latitude 
than does section 172(c)(9), which applies to a different set of 
contingency measures applicable to nonattainment areas. Section 
172(c)(9) contingency measures must ``take effect * * * without further 
action by the State or [EPA].'' By contrast, section 175A confers upon 
EPA the discretion to determine what constitutes adequate assurance, 
and thus permits EPA to take into account the need of a state to 
assess, adopt and implement contingency measures if and when a 
violation occurs after an area's redesignation to attainment. 
Therefore, in accordance with the discretion accorded it by statute, 
EPA may allow reasonable time for states to analyze data and address 
the causes and appropriate means of remedying a violation. In assessing 
what ``promptly'' means in this context, EPA also may take into account 
time for adopting and implementation of the appropriate measure. In the 
case of the St. Louis area, EPA reasonably concluded that, 18 months 
constitutes a timeline consistent with prompt correction of a potential 
monitored violation. This timeframe also conforms with EPA's many prior 
rulemakings on acceptable schedules for implementing section 175A 
contingency measures as noted above.
    Comment 8a(2): The commenter contends that several of Illinois' 
contingency measures, ``NOX RACT'' and ``Broader geographic 
applicability of existing measures,'' are too vague. The commenter 
asserts that the vagueness of these contingency measures provides no 
evidence that the maintenance plan will provide enough emission 
controls to correct ozone standard violations.
    Response 8a(2): As discussed above in response to Comment 8a (1), 
the CAA does not specify the requisite nature, scope, specificity, or 
number of contingency measures to be included in a maintenance plan 
under section 175A. It is for EPA to determine whether the State has 
given adequate assurance that it can promptly correct a violation. 
Illinois has submitted contingency measures that EPA deems adequate. 
They have committed to remedy a future violation, and have included 
measures to address potential violations from a range of sources and a 
timeline for promptly completing adoption and implementation. The State 
has identified measures that are sufficiently specific but which allow 
for latitude in potential scope. This will enable the State to address 
a range of potential sources and differing degrees and types of 
violations. EPA believes that the contingency measures set forth in the 
submittal, combined with the State's commitment to an expeditious 
timeline and process for implementation, provide assurance that the 
State will promptly correct a future potential violation. Given the 
uncertainty as to timing, degree and nature of any future violation, 
EPA believes that the contingency measures set forth adequately balance 
the need for flexibility in the scope and type of measure to be 
implemented with the need for expeditious state action.
    Comment 8a(3): The commenter contends that several of the potential 
contingency emission control measures are inappropriate or inadequate. 
The commenter states that several of the contingency emission control 
measures, including the Tier 2 vehicle emission standards, low sulfur 
fuel standards, heavy duty diesel standards, and low sulfur diesel 
standards are Federal emission control measures that EPA is already 
implementing. The commenter contends that EPA cannot both credit these 
emission control measures with existing emission reductions and allow 
IEPA to include them as potential contingency measures in the ozone 
maintenance plan. The commenter states that this approach would amount 
to double counting the effects of these emission control measures.
    Response 8a(3): As discussed above in response to Comment 8a(2), 
the CAA

[[Page 34828]]

does not specify the requisite nature, scope, specificity, or number of 
contingency measures to be included in a maintenance plan under section 
175A. EPA has considered that the maintenance plan includes adequate 
state contingency measures, and that these are sufficient for the 
purpose of maintenance. EPA considers that the state measures 
themselves constitute adequate contingency measures, and that the 
Federal measures included also bolster maintenance to the extent that 
they provide reductions that were not counted in the maintenance plan's 
demonstration as explained below.
    EPA also disagrees with the commenter's contention that EPA is 
double counting emissions reductions. The fact that some emissions 
reductions may have already been realized by a control measure does not 
prevent the control measure from resulting in greater reductions in 
future years. Further, as stated in the proposed rule (76 FR 79591), 
``[t]o qualify as a contingency measure, emissions reductions from that 
measure must not be factored into the emissions projections used in the 
maintenance plan.'' This prevents possible double counting of emissions 
reductions during the maintenance period. Should the contingency plan 
be triggered, the state would be required to choose a contingency 
measure that meets this criterion. Any control measure listed in the 
contingency plan that fails to meet this criterion would not be 
considered to be an eligible contingency measure at that time and the 
state would be required to choose one that does.
    Comment 8b: The commenter asserts that EPA, in assessing the 
adequacy of Illinois' ozone maintenance demonstration, has credited the 
state with NOX emission reductions in upwind areas that are 
the products of the NOX SIP call and CSAPR. These rules 
develop cap-and-trade programs that the commenter argues cannot satisfy 
the maintenance plan requirement. In addition, CSAPR has been stayed by 
the Court and may not be relied upon to provide NOX emission 
reductions.
    Response 8b: As discussed in Response 3b, EPA disagrees with the 
commenter's position that emission reductions associated with the 
NOX SIP Call cannot be considered to be permanent and 
enforceable simply because they result from an emissions trading 
program. In addition, as discussed in Response 3a, Illinois has not 
relied on CSAPR to demonstrate attainment or maintenance of the 
standard.
    Comment 8c: The commenter contends that Illinois' maintenance plan 
fails to consider additional emissions expected to occur from the 
Prairie State electrical power plant, which is currently under 
construction. This power plant is expected to commence operation during 
the ozone maintenance period. This power plant is expected to be a 
major source of NOX emissions. The commenter asserts that 
EPA cannot presume that, because the Prairie State power plant has 
obtained a PSD source permit, it will not cause or contribute to a 
violation of the 1997 8-hour ozone standard. EPA must review the PSD 
record and include the relevant portions in the administrative record 
for this ozone redesignation rulemaking.
    Response 8c: Neither the CAA nor EPA redesignation policy requires 
that EPA review and take into consideration construction permits as a 
criterion for redesignation. Consistent with EPA's redesignation policy 
as articulated in the September 4, 1992, Calcagni memorandum, the State 
demonstrated maintenance of the standard by showing that future 
emissions in the area will not exceed the level of emissions in the 
attainment inventory for the area. The Prairie State power plant under 
construction is located in Washington County, which is not part of the 
St. Louis area. Thus emissions from this facility do not factor into 
the attainment or maintenance inventories for the area. EPA, in its 
proposed redesignation and elsewhere in our responses to comments in 
this final rule, has addressed and considered issues pertaining to the 
potential impact of emissions from outside the St. Louis area on the 
area's maintenance of the 1997 ozone standard.
    Finally, under title I, part C of the CAA, the PSD preconstruction 
permit program requires an air quality analysis to demonstrate that 
emissions from construction or operation of a proposed major stationary 
source or major modification will not cause or contribute to a 
violation of any applicable NAAQS or PSD increment. CAA section 
165(a)(3); see also 40 CFR 51.166(k) (providing that the owner or 
operator of a proposed source or modification ``shall demonstrate that 
allowable emissions increases from the proposed source or modification, 
in conjunction with all other applicable emissions increases or 
reduction * * * would not cause or contribute to air pollution in 
violation of'' any NAAQS or PSD increment). Therefore, the effect of 
the emissions from a proposed source on the maintenance of the NAAQS is 
addressed through the PSD permitting program before the facility is 
authorized to build and operate. Neither the CAA nor EPA policy require 
EPA to include the record from an independent PSD proceeding in the 
record for a redesignation action or to reopen permitting issues as 
part of a redesignation action. In addition, the commenter has not 
provided data indicating that the Prairie State plant will cause or 
contribute to a NAAQS or increment violation in the St. Louis area.
    Comment 9: The commenter asserts that EPA has not accounted for the 
effects of weather in its modeling. The commenter notes that EPA's 
analysis of Illinois' ozone redesignation request is devoid of weather-
adjusted considerations of ambient ozone levels. For this reason, this 
commenter believes that EPA cannot approve Illinois' ozone 
redesignation request. In addition, the commenter believes that EPA has 
erred in not considering the impacts that climate change will have on 
future ozone formation during the maintenance period.
    Response 9: A determination that an area has attained the 1997 8-
hour ozone standard is based on a review of monitored air quality data 
that meets regulatory requirements for purposes of comparison to the 
NAAQS, and it is not derived from modeling. An area is considered to be 
in attainment of the 1997 8-hour ozone standard if 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 does not exceed 
0.084 ppm. Three years of air quality data are used to allow for year-
to-year variations in meteorology. As discussed in detail in the 
proposed rule, the St. Louis area is monitoring attainment of the 1997 
8-hour ozone standard. See 76 FR 79582-79583 (December 22, 2011).
    In addition, a maintenance demonstration need not be based on 
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. 
EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 
(October 19, 2001), and 68 FR 25413, 25430-25432 (May 12, 2003). EPA 
policy and longstanding practice allows states to demonstrate 
maintenance by preparing an attainment emissions inventory 
corresponding to the period during which the area monitored attainment 
and to project maintenance by showing that future emissions are 
projected to remain below this level for the next ten years. See 
Calcagni memorandum. Holding emissions at or below the level of 
attainment is adequate to reasonably assure continued maintenance of 
the standard. See 65 FR 37879, 37888 (June

[[Page 34829]]

19, 2000). Since the St. Louis action is not based on modeling, EPA 
concludes that weather related impacts, including climate change, on 
modeling are not relevant. Impacts of weather on monitored data are 
accounted for by the three years of data used for the attainment 
determination.

III. What actions is EPA taking?

    EPA is approving a request from the State of Illinois to 
redesignate the Illinois portion of the St. Louis, MO-IL area to 
attainment of the 1997 8-hour ozone standard. EPA is also taking 
several other related actions. EPA is approving, as a revision to the 
Illinois SIP, the State's plan for maintaining the 1997 8-hour ozone 
standard through 2025 in the area. EPA is approving the 2002 emissions 
inventory as meeting the comprehensive emissions inventory requirement 
of the CAA for the Illinois portion of the St. Louis area. Finally, EPA 
finds adequate and is approving the State's 2008 and 2025 MVEBs for the 
Illinois portion of the St. Louis area.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for these actions to become effective immediately upon publication. 
This is because a delayed effective date is unnecessary due to the 
nature of a redesignation to attainment, which relieves the area from 
certain CAA requirements that would otherwise apply to it. The 
immediate effective date for this action is authorized under both 5 
U.S.C. 553(d)(1), which provides that rulemaking actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction,'' and section 
553(d)(3) which allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' The purpose of the 30 day waiting period 
prescribed in section 553(d) is to give affected parties a reasonable 
time to adjust their behavior and prepare before the final rule takes 
effect. Today's rule, however, does not create any new regulatory 
requirements such that affected parties would need time to prepare 
before the rule takes effect. Rather, today's rule relieves the state 
of planning requirements for this 8-hour ozone nonattainment area. For 
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these 
actions to become effective on the date of publication of these 
actions.

IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of a maintenance plan under section 107(d)(3)(E) 
are actions that affect the status of a geographical area and do not 
impose any additional regulatory requirements on sources beyond those 
imposed by state law. A redesignation to attainment does not in and of 
itself create any new requirements, but rather results in the 
applicability of requirements contained in the CAA for areas that have 
been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
These actions do not impose additional requirements beyond those 
imposed by state law and the CAA. For that reason, these actions:
     Are not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 13, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. 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, Ozone, 
Volatile organic compounds.

    Dated: May 30, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

0
2. Section 52.726 is amended by adding paragraphs (ll) and (mm) to read 
as follows:

Sec.  52.726  Control strategy: Ozone.

* * * * *

[[Page 34830]]

    (ll) Approval--On May 26, 2010, and September 16, 2011, Illinois 
submitted a request to redesignate the Illinois portion of the St. 
Louis, MO-IL area to attainment of the 1997 8-hour ozone standard. The 
St. Louis area includes Jersey, Madison, Monroe, and St. Clair Counties 
in Illinois and St. Louis City and Franklin, Jefferson, St. Charles and 
St. Louis Counties in Missouri. As part of the redesignation request, 
the State submitted a plan for maintaining the 1997 8-hour ozone 
standard through 2025 in the area as required by section 175A of the 
Clean Air Act. Part of the section 175A maintenance plan includes a 
contingency plan. The ozone maintenance plan establishes 2008 motor 
vehicle emissions budgets for the Illinois portion of the St. Louis 
area of 17.27 tpd for volatile organic compounds (VOC) and 52.57 tpd 
for nitrogen oxides (NOX). In addition the maintenance plan 
establishes 2025 motor vehicle emissions budgets for the Illinois 
portion of the St. Louis area of 5.68 tpd for VOC and 15.22 tpd for 
NOX.
    (mm) Emissions inventories for the 1997 8-hour ozone standard--
    (1) Approval--Illinois' 2002 emissions inventory satisfies the 
emissions inventory requirements of section 182(a)(1) of the Clean Air 
Act for the Illinois portion of the St. Louis, MO-IL area under the 
1997 8-hour ozone standard.
    (2) [Reserved]

PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

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

0
4. Section 81.314 is amended by revising the entry for St. Louis, MO-IL 
in the table entitled ``Illinois-Ozone (8-Hour Standard)'' to read as 
follows:

Sec.  81.314  Illinois.

* * * * *

                                                            Illinois--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                         Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
St. Louis, MO-IL:
    Jersey County.......................    6/12/2012  Attainment...............................
    Madison County......................    6/12/2012  Attainment...............................
    Monroe County.......................    6/12/2012  Attainment...............................
    St. Clair County....................    6/12/2012  Attainment...............................
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
[FR Doc. 2012-14102 Filed 6-11-12; 8:45 am]
BILLING CODE 6560-50-P
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