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[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)]
[Rules and Regulations]
[Pages 57463-57466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20002]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2015-0075; FRL-9950-86-Region 5]

Air Plan Approval; Wisconsin; Kenosha County 2008 8-Hour Ozone 
Nonattainment Area Reasonable Further Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving an 
Early Progress Plan and motor vehicle emissions budgets (MVEBs) for 
volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) for the Kenosha County, Wisconsin 8-hour ozone 
nonattainment area. Wisconsin submitted an Early Progress Plan for 
Kenosha County on January 16, 2015. This submittal was developed to 
establish MVEBs for the Kenosha 2008 8-hour ozone nonattainment area. 
This approval of the Early Progress Plan for the Kenosha 2008 8-hour 
ozone nonattainment area is based on EPA's determination that Wisconsin 
has demonstrated that the State Implementation Plan (SIP) revision 
containing these MVEBs, when considered with the emissions from all 
sources, shows progress toward attainment from the 2011 base year 
through a 2015 target year.

DATES: This direct final rule will be effective October 24, 2016, 
unless EPA receives adverse comments by September 22, 2016. 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-2015-0075 at http://www.regulations.gov or via email to 
persoon.carolyn@epa.gov. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the

[[Page 57464]]

official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e. on the web, cloud, or 
other file sharing system). For additional submission methods, please 
contact the person identified in the For Further Information Contact 
section. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michael Leslie, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-6680, leslie.michael@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 action?
II. What are the criteria for early progress plans?
III. What is EPA's analysis of the request?
IV. What are the MVEBs for the Kenosha County 2008 8-hour ozone 
nonattainment area?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. What is the background for this action?

    EPA's final rule designating nonattainment areas and associated 
classifications for the 2008 ozone National Ambient Air Quality 
Standards (NAAQS) was published in the Federal Register on May 21, 2012 
(77 FR 30088). A portion of Kenosha County was designated as marginal 
nonattainment. The Kenosha County 2008 8-hour ozone nonattainment area 
had been previously designated nonattainment as part of the larger 
Milwaukee area for the 1997 8-hour ozone standard and had MVEBs for 
NOX and VOC established in the Wisconsin 1997 8-hour 
maintenance plan SIP. Consequently, the transportation partners in the 
Kenosha area have to use the 1997 8-hour ozone nonattainment MVEBs for 
the Milwaukee area to demonstrate transportation conformity for the 
2008 8-hour ozone standard until new MVEBs are approved or found 
adequate, as required by the transportation conformity rule at 40 CFR 
93.109(c)(2)(i). Wisconsin submitted this plan to establish new MVEBs 
for Kenosha County developed with EPA's MOVES2014 model.

II. What are the criteria for early progress plans?

    EPA allows for the establishment of MVEBs for the 2008 8-hour ozone 
standard prior to a state submitting its first required 2008 8-hour 
ozone SIP that would include new MVEBs. Although voluntary, these 
``early'' MVEBs must be established through a plan that meets all the 
requirements of a SIP submittal. This plan is known as the ``Early 
Progress Plan.'' Specifically and in reference to Early Progress Plans, 
the preamble of the July 1, 2004, final transportation conformity rule 
(see, 69 FR 40019) reads as follows:

    The first 8-hour ozone SIP could be a control strategy SIP 
required by the Clean Air Act (e.g., rate-of-progress SIP or 
attainment demonstration) or a maintenance plan. However, 8-hour 
ozone nonattainment areas `are free to establish, through the SIP 
process, a motor vehicle emissions budget or budgets that addresses 
the new NAAQS in advance of a complete SIP attainment demonstration. 
That is, a state could submit a motor vehicle emission budget that 
does not demonstrate attainment but is consistent with projections 
and commitments to control measures and achieves some progress 
toward attainment' (August 15, 1997, 62 FR 43799). A SIP submitted 
earlier than otherwise required can demonstrate a significant level 
of emissions reductions from current level of emissions, instead of 
a specific percentage required by the Clean Air Act for moderate and 
above ozone areas.

    The Early Progress Plan must demonstrate that the SIP revision 
containing the MVEBs, when considered with emissions from all sources, 
and when projected from the base year to a future year, shows progress 
toward attainment. EPA has previously indicated that a 5 percent to 10 
percent reduction in emissions from all sources could represent a 
significant level of emissions reductions from current levels (69 FR 
40019). This allowance is provided so that areas have an opportunity to 
use the budget test to demonstrate conformity as opposed to the interim 
conformity tests (i.e., 2002 baseline test and/or action versus 
baseline test). The budget test with an adequate or approved SIP budget 
is generally more protective of air quality and provides a more 
relevant basis for conformity determinations than the interim emissions 
test. (69 FR 40026).
    It should also be noted that the Early Progress Plan is not a 
required plan and does not substitute for required submissions such as 
an attainment demonstration or rate-of-progress plan, if such plans 
become required for the Kenosha 8-hour ozone area.

III. What is EPA's analysis of the request?

    On January 16, 2015, the State submitted to EPA an Early Progress 
Plan for the sole purpose of establishing MVEBs for the Kenosha 2008 8-
hour ozone nonattainment area. The submittal utilizes a base year of 
2011, and a projected year 2015 to establish NOX and VOC 
MVEBs. The planning assumptions used to develop the MVEBs were 
discussed and agreed to by the Kenosha interagency consultation group, 
which consists of the transportation and air quality partners in the 
Kenosha 2008 8-hour ozone nonattainment area. Tables 1 and 2 below show 
the differences by source categories between the 2011 base year and 
2015 forecast year. The NOX and VOC emissions in tons per 
day (tpd) within the Kenosha nonattainment area are expected to 
decrease significantly, 6.9 percent and 8.9 percent, respectively, 
between 2011 and 2015. These emission trends demonstrate that progress 
will be made towards attainment of the 2008 8-hour ozone NAAQS.

   Table 1--Kenosha County 2008 Ozone Nonattainment Area NOX Emissions
                     [Kenosha County NOX Emissions]
------------------------------------------------------------------------
                                                     2011 NOX   2015 NOX
                      Source                          (tpd)      (tpd)
------------------------------------------------------------------------
Point.............................................       8.80       6.15
Area..............................................       1.09       1.33
On-road Mobile....................................       5.17       4.40
Non-Road Mobile...................................       2.14       1.69
                                                   ---------------------
    Total.........................................      17.17      15.98
                                                   ---------------------
Total Percent Reduction...........................          6.9%
------------------------------------------------------------------------

   Table 2--Kenosha County 2008 Ozone Nonattainment Area VOC Emissions
                     [Kenosha County VOC Emissions]
------------------------------------------------------------------------
                                                     2011 VOC   2015 VOC
                    VOC Source                        (tpd)      (tpd)
------------------------------------------------------------------------
Point.............................................       0.70       2.63
Area..............................................       4.78       4.72
On-road Mobile....................................       2.38       1.99
Non-Road Mobile...................................       1.46       1.08
                                                   ---------------------
    Total.........................................       9.32       8.49
                                                   ---------------------
Total Percent Reduction...........................          8.9%
------------------------------------------------------------------------

    EPA found these MVEBs adequate for transportation conformity 
purposes in

[[Page 57465]]

an earlier action (80 FR 17428, April 1, 2015). As of April 16, 2015, 
the effective date of EPA's adequacy finding for these MVEBs, 
conformity determinations in Kenosha County must meet the budget test 
using these 2008 8-hour ozone MVEBs, instead of the 1997 8-hour ozone 
MVEBs. Please note that this adequacy finding does not relate to the 
merits of the SIP submittal, nor does it indicate whether the submittal 
meets the requirements for approval. This EPA rulemaking action takes 
formal action on the Early Progress Plan SIP revision.

IV. What are the MVEBs for the Kenosha 2008 8-hour ozone nonattainment 
area?

    Through this rulemaking, EPA is approving the 2015 regional MVEBs 
for NOX and VOC for the Kenosha County 2008 8-hour ozone 
nonattainment area. EPA has determined that the MVEBs contained in the 
Early Progress Plan SIP revision are consistent with emission 
reductions from all sources within the nonattainment area and are 
showing progress toward attainment.
    The 2015 MVEBs in tpd for VOCs and NOX for the Kenosha 
County, Wisconsin nonattainment area are as follows:

------------------------------------------------------------------------
                                                   2015 NOX    2015 VOCs
                      Area                           (tpd)       (tpd)
------------------------------------------------------------------------
Kenosha County..................................      4.397       1.944
------------------------------------------------------------------------

V. What action is EPA taking?

    EPA is approving Kenosha's Early Progress Plan, including the 2015 
MVEBs for NOX and VOC. The Early Progress Plan demonstrates 
progress towards attainment of the 2008 8-hour ozone NAAQS for the 
Kenosha nonattainment area. The NOX and VOC emissions 
reductions from 2011 to 2015 for Kenosha County nonattainment areas 
were 6.9 percent and 8.9 percent, respectively. These emission 
reductions are based on control measures that are permanent and 
enforceable and will continue to improve air quality in the region, 
thus demonstrating that the MVEBs are showing progress toward 
attainment.
    EPA issues this direct final rulemaking in response to Wisconsin's 
January 16, 2015 submittal of an Early Progress Plan. This revision is 
a voluntary SIP revision for the sole purpose of establishing MVEBs for 
the purpose of implementing transportation conformity in the Kenosha 
County 2008 8-hour ozone nonattainment area.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment 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 approve the State plan if relevant adverse 
written comments are filed. This rule will be effective October 24, 
2016 without further notice unless we receive relevant adverse written 
comments by September 22, 2016. If we receive such comments, we will 
withdraw this action 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. EPA will not institute a second comment 
period. Any parties interested in commenting on this action should do 
so at this time. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision 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 
October 24, 2016.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
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 Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is 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.);
     Does 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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is 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
     Does 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 24, 2016. 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. Parties with

[[Page 57466]]

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 this direct final rule 
and address the comment in the proposed rulemaking. This action may not 
be challenged later in proceedings to enforce its requirements. (See 
CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Volatile organic 
compounds, Oxides of nitrogen.

    Dated: August 5, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

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

Sec.  52.2585   Control strategy; ozone.

* * * * *
    (ee) Approval--On January 16, 2015, the State of Wisconsin 
submitted a revision to its State Implementation Plan for Kenosha 
County, Wisconsin. The submittal established new Motor Vehicle 
Emissions Budgets (MVEB) for Volatile Organic Compounds (VOC) and 
Oxides of Nitrogen (NOX) for the year 2015. The MVEBs for 
Kenosha County nonattainment area are now: 1.994 tons per day of VOC 
emissions and 4.397 tons per day of NOX emissions for the 
year 2015.

[FR Doc. 2016-20002 Filed 8-22-16; 8:45 am]
 BILLING CODE 6560-50-P
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