[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

[[Page 76429]]

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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