[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Proposed Rules]
[Pages 76427-76430]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31290]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0347; FRL-9765-3]
Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin; Milwaukee-Racine Nonattainment Area; Determination of
Attainment for the 2006 24-Hour Fine Particle Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On April 24, 2012, EPA proposed to determine that the
Milwaukee-Racine, Wisconsin area had attained the 2006 24-hour fine
particle (2006 PM2.5) National Ambient Air Quality Standard
(NAAQS). EPA received several comments on the original proposal,
including one suggesting that the suspension of certain Clean Air Act
(CAA) requirements cannot be applied in this instance because it only
pertains to the 1997 PM2.5 NAAQS and not to the 2006
PM2.5 NAAQS. As a result, we are reproposing a narrow
portion of our original determination to address this issue. We will
address all comments received on the original proposal and this
proposal in our final notice.
DATES: Comments must be received on or before January 28, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0347, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: aburano.douglas@epa.gov.
3. Fax: (312) 408-2279.
4. Mail: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2011-3047. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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 Gilberto Alvarez, Environmental
Scientist, at (312) 886-6143 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Gilberto Alvarez, Environmental
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6143,
alvarez.gilberto@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 should I consider as I prepare my comments for EPA?
II. What action is EPA taking?
III. What is the background for this action?
IV. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at
[[Page 76428]]
your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What action is EPA taking?
On April 24, 2012, at 77 FR 24436, EPA proposed to determine that
the Milwaukee-Racine, Wisconsin area had attained the 2006
PM2.5 NAAQS. EPA received several comments on the original
proposal, including one suggesting that 40 CFR 51.1004(c) cannot be
applied in this instance because it only pertains to the 1997
PM2.5 NAAQS and not to the 2006 PM2.5 NAAQS. 40
CFR 51.1004(c) pertains to the suspension of certain CAA requirements
including the requirements for Wisconsin to submit an attainment
demonstration, associated reasonably available control measures (RACM)
to include reasonably available control technology (RACT), a reasonable
further progress (RFP) plan, contingency measures, and any other
planning State Implementation Plans (SIPs) related to attainment of the
2006 PM2.5 NAAQS, and continues until such time, if any,
that EPA subsequently determines that the area has violated the 2006
PM2.5 NAAQS.
Our original proposal did not clearly explain EPA's views on the
applicability of CFR 51.1004(c) to the 2006 PM2.5 NAAQS. As
a result, in this re-proposal, EPA today is explaining its views and
soliciting comment on this specific issue. We will address all comments
received on the original proposal and this proposal in our final
notice.
III. What is the background for this action?
In April 2007, EPA issued its PM2.5 Implementation Rule
for the 1997 PM2.5 standard. 72 FR 20586 (April 25, 2007).
In March 2012, EPA published implementation guidance for the 2006
PM2.5 standard. See Memorandum from Stephen D. Page,
Director, Office of Air Quality Planning and Standards,
``Implementation Guidance for the 2006 24-Hour Final Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS)''
(March 2, 2012). In that guidance, EPA stated its view ``that the
overall framework and policy approach of the 2007 PM2.5
Implementation Rule continues to provide effective and appropriate
guidance on the EPA's interpretation of the general statutory
requirements that states should address in their SIPs. In general, EPA
believes that the interpretations of the statute in the framework of
the 2007 PM2.5 Implementation Rule are relevant to the
statutory requirements for the 2006 24-hour PM2.5 NAAQS * *
*.'' Id., page 1. With respect to the statutory provisions applicable
to 2006 PM2.5 implementation, the guidance emphasized that
``EPA outlined its interpretation of many of these provisions in the
2007 PM2.5 Implementation Rule. In addition to regulatory
provisions, EPA provided substantial general guidance for attainment
plans for PM2.5 in the preamble to the final the [sic] 2007
PM2.5 Implementation Rule.'' Id., page 2. In keeping with
the principles set forth in the guidance, and with respect to the
effect of a determination of attainment for the 2006 PM2.5
standard, EPA is applying the same interpretation with respect to the
implications of clean data determinations that it set forth in the
preamble to the 1997 PM2.5 standard and in the regulation
that embodies this interpretation. 40 CFR 51.1004(c).\1\ EPA has long
applied this interpretation in regulations and individual rulemakings
for the 1-hour ozone and 1997 8-hour ozone standards, the PM-10
standard, and the lead standard. While EPA recognizes that the
regulatory provisions of 51.1004(c) do not explicitly apply to the 2006
PM2.5 standard, the statutory interpretation that it
embodies is identical for both the 1997 PM2.5 and 2006
PM2.5 standards.
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\1\ While EPA recognizes that 40 CFR 51.1004(c) does not itself
expressly apply to the 2006 PM2.5 standard, the statutory
interpretation that it embodies is identical and is applicable to
both the 1997 and 2006 PM2.5 standards.
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History and Basis of EPA's Clean Data Policy
Following enactment of the CAA Amendments of 1990, EPA promulgated
its interpretation of the requirements for implementing the NAAQS in
the general preamble for the Implementation of Title I of the CAA
Amendments of 1990 (General Preamble) 57 FR 13498, 13564 (April 16,
1992). In 1995, based on the interpretation of CAA sections 171 and
172, and section 182 in the General Preamble, EPA set forth what has
become known as its ``Clean Data Policy'' for the 1-hour ozone NAAQS.
See Memorandum from John S. Seitz, Director, Office of Air Quality
Planning and Standards, ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard'' (May 10,
1995). In 2004, EPA indicated its intention to extend the Clean Data
Policy to the PM2.5 NAAQS. See Memorandum from Stephen Page,
Director, EPA Office of Air Quality Planning and Standards, ``Clean
Data Policy for the Fine Particle National Ambient Air Quality
Standards'' (December 14, 2004). Since 1995, EPA has applied its
interpretation under the Clean Data Policy in many rulemakings,
suspending certain attainment-related planning requirements for
individual areas, based on a determination of attainment. See 60 FR
36723 (July 18, 1995) (Salt Lake and Davis Counties, Utah, 1-hour
ozone); 61 FR 20458 (May 7, 1996) (Cleveland-Akron-Lorain, Ohio, 1-hour
ozone); 61 FR 31831 (June 21, 1996) (Grand Rapids, Michigan, 1-hour
ozone); 65 FR 37879 (June 19, 2000) (Cincinnati-Hamilton, Ohio-
Kentucky, 1-hour ozone); 66 FR 53094 (October 19, 2001) (Pittsburgh-
Beaver Valley, Pennsylvania, 1-hour ozone); 68 FR 25418 (May 12, 2003)
(St. Louis, Missouri-Illinois, 1-hour ozone); 69 FR 21717 (April 22,
2004) (San Francisco Bay Area, California, 1-hour ozone), 75 FR 6570
(February 10, 2010) (Baton Rouge, Louisiana, 1-hour ozone), 75 FR 27944
(May 19, 2010) (Coso Junction, California, PM10).
EPA also incorporated its interpretation under the Clean Data
Policy in several implementation rules. See Clean Air Fine Particle
Implementation Rule, 72 FR 20586 (April 25, 2007); Final Rule To
Implement the 8-Hour Ozone National Ambient Air Quality Standard--Phase
2, 70 FR 71612 (November 29, 2005). The Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) upheld EPA's rule embodying
the Clean Data Policy for the 1997 8-hour ozone standard. NRDC v. EPA,
571 F.3d 1245 (D.C. Cir. 2009). Other courts have reviewed and
considered individual rulemakings applying EPA's Clean Data Policy, and
have consistently upheld them in every case. Sierra Club v. EPA, 99
F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004); Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir.
June 28, 2005 (Memorandum Opinion)), Latino Issues Forum v. EPA, Nos.
06-75831 and 08-71238 (9th Cir. March 2, 2009 (Memorandum Opinion)).
EPA sets forth below a brief explanation of the statutory
interpretations in the Clean Data Policy. EPA also incorporates the
discussions of its interpretation set forth in prior rulemakings,
including the 1997 PM2.5 implementation rulemaking. See 72
FR
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20586, at 20603-20605 (April 25, 2007).\2\
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\2\ See also 75 FR 31288 (June 3, 2010) (Providence, Rhode
Island, 1997 8-hour ozone), 75 FR 62470 (October 12, 2010)
(Knoxville, Tennessee, 1997 8-hour ozone), 75 FR 53219 (August 31,
2010) (Greater Connecticut Area, 1997 8-hour ozone), 75 FR 54778
(September 9, 2010) (Baton Rouge, Louisiana, 1997 8-hour ozone), 75
FR 64949 (October 21, 2010) (Providence, Rhode Island, 1997 8-hour
ozone), 76 FR 11080 (March 1, 2011) (Milwaukee-Racine and Sheboygan
Areas, Wisconsin, 1997 8-hour ozone), 76 FR 31273 (May 31, 2011)
(Pittsburgh-Beaver Valley, Pennsylvania, 1997 8-hour ozone), 76 FR
33647 (June 9, 2011) (St. Louis, Missouri-Illinois, 1997 8-hour
ozone), 76 FR 7145 (November 15, 2011) (Charlotte-Gastonia-Rock
Hill, North Carolina-South Carolina, 1997 8-hour ozone), 77 FR 31496
(May 29, 2012) (Boston-Lawrence-Worchester, Massachusetts, 1997 8-
hour ozone). See also, 75 FR 56 (January 4, 2010) (Greensboro-
Winston-Salem-High Point, North Carolina, 1997 PM2.5), 75
FR 230 (January 5, 2010) (Hickory-Morganton-Lenoir, North Carolina,
1997 PM2.5), 76 FR 12860 (March 9, 2011) (Louisville,
Kentucky-Indiana, 1997 PM2.5), 76 FR 1850 (April 5, 2011)
(Rome, Georgia, 1997 PM2.5), 76 FR 31239 (May 31, 2011)
(Chattanooga, Tennessee-Georgia-Alabama, 1997 PM2.5), 76
FR 31858 (June 2, 2011) (Macon, Georgia, 1997 PM2.5), 76
FR 36873 (June 23, 2011) (Atlanta, Georgia, 1997 PM2.5),
76 FR 38023 (June 29, 2011) (Birmingham, Alabama, 1997
PM2.5), 76 FR 5542 (September 7, 2011) (Huntington-
Ashland, West Virginia-Kentucky-Ohio, 1997 PM2.5), 76 FR
60373 (September 29, 2011) (Cincinnati, Ohio-Kentucky-Indiana, 1997
PM2.5), 77 FR 18922 (March 29, 2012) (Harrisburg-Lebanon-
Carlisle-York, Allentown, Johnstown and Lancaster, Pennsylvania,
1997 PM2.5).
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The Clean Data Policy represents EPA's interpretation that certain
requirements of subpart 1 of part D of the CAA are by their terms not
applicable to areas that are currently attaining the NAAQS.\3\ As
explained below, the specific requirements that are inapplicable to an
area attaining the standard are the requirements to submit a SIP that
provides for: Attainment of the NAAQS; implementation of all RACM; RFP;
and implementation of contingency measures for failure to meet
deadlines for RFP and attainment.
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\3\ This discussion refers to subpart 1 because subpart 1
contains the requirements relating to attainment of the 2006
PM2.5 NAAQS.
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CAA section 172(c)(1), the requirement for an attainment
demonstration, provides in relevant part that SIPs ``shall provide for
attainment of the [NAAQS].'' EPA has interpreted this requirement as
not applying to areas that have already attained the standard. If an
area has attained the standard, there is no need to submit a plan
demonstrating how the area will reach attainment. In the General
Preamble (57 FR 13564), EPA stated that no other measures to provide
for attainment would be needed by areas seeking redesignation to
attainment since ``attainment will have been reached.'' See also
Memorandum from John Calcagni, ``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' (September 4, 1992), at page 6.
A component of the attainment plan specified under section
172(c)(1) is the requirement to provide for ``the implementation of all
RACM as expeditiously as practicable''. Since RACM is an element of the
attainment demonstration, see General Preamble (57 FR 13560), for the
same reason the attainment demonstration no longer applies by its own
terms, RACM also no longer applies to areas that EPA has determined
have attained the NAAQS. Furthermore, EPA has consistently interpreted
this provision to require only implementation of such potential RACM
measures that could advance attainment.\4\ Thus, where an area is
already attaining the standard, no additional RACM measures are
required. EPA's interpretation that the statute requires only
implementation of the RACM measures that would advance attainment was
upheld by the United States Court of Appeals for the Fifth Circuit
(Sierra Club v. EPA, 314 F.3d 735, 743-745, 5th Cir. 2002) and by the
United States Court of Appeals for the DC Circuit (Sierra Club v. EPA,
294 F. 3d 155, 162-163, DC Cir. 2002). See also the final rulemakings
for Pittsburgh-Beaver Valley, Pennsylvania, 66 FR 53096 (October 19,
2001) and St. Louis, Missouri-Illinois, 68 FR 25418 (May 12, 2003).
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\4\ This interpretation was adopted in the General Preamble, see
57 FR 13498, and has been upheld as applied to the Clean Data
Policy, as well as to nonattainment SIP submissions. See NRDC v.
EPA, 571 F.3d 1245 (DC Cir. 2009); Sierra Club v. EPA, 294 F.3d 155
(DC Cir. 2002).
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CAA section 172(c)(2) provides that SIP provisions in nonattainment
areas must require ``reasonable further progress.'' The term
``reasonable further progress'' is defined in section 171(1) as ``such
annual incremental reductions in emissions of the relevant air
pollutant as are required by this part or may reasonably be required by
the Administrator for the purpose of ensuring attainment of the
applicable NAAQS by the applicable date.'' Thus, by definition, the
``reasonable further progress'' provision under subpart 1 requires only
such reductions in emissions as are necessary to attain the NAAQS. If
an area has attained the NAAQS, the purpose of the RFP requirement has
been fulfilled, and since the area has already attained, showing that
the state will make RFP towards attainment ``[has] no meaning at that
point.'' General Preamble, 57 FR 13498, 13564 (April 16, 1992).
CAA section 172(c)(9) provides that SIPs in nonattainment areas
``shall provide for the implementation of specific measures to be
undertaken if the area fails to make reasonable further progress, or to
attain the [NAAQS] by the attainment date applicable under this part.
Such measures shall be included in the plan revision as contingency
measures to take effect in any such case without further action by the
State or [EPA].'' This contingency measure requirement is inextricably
tied to the RFP and attainment demonstration requirements. Contingency
measures are implemented if RFP targets are not achieved, or if
attainment is not realized by the attainment date. Where an area has
already achieved attainment, it has no need to rely on contingency
measures to come into attainment or to make further progress to
attainment. As EPA stated in the General Preamble: ``The section
172(c)(9) requirements for contingency measures are directed at
ensuring RFP and attainment by the applicable date.'' See 57 FR 13564.
Thus these requirements no longer apply when an area has attained the
standard.
It is important to note that should an area attain the 2006
PM2.5 standard based on three years of data, its obligation
to submit an attainment demonstration and related planning submissions
is suspended only for so long as the area continues to attain the
standard. If EPA subsequently determines, after notice and comment
rulemaking, that the area has violated the NAAQS, the requirements for
Wisconsin to submit a SIP to meet the previously suspended requirements
would be reinstated. It is likewise important to note that the area
remains designated nonattainment pending a further redesignation
action.
IV. Statutory and Executive Order Reviews.
This action proposes to make a determination of attainment based on
air quality, and would, if finalized, result in the suspension of
certain Federal requirements, and it would not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is 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);
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.);
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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 CAA; 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,
this proposed 2006 PM2.5 clean NAAQS data determination for
the Milwaukee-Racine, Wisconsin area 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
Matter, Incorporation by reference, Intergovernmental relations,
Reporting and recordkeeping requirements.
Dated: December 17, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-31290 Filed 12-27-12; 8:45 am]
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