[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41698-41703]
[FR Doc No: 2013-16478]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0839; FRL-9832-3]

Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Redesignation of the Indianapolis Area to Attainment of the
1997 Annual Standard for Fine Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving Indiana's request to redesignate the
Indianapolis, Indiana nonattainment area (Hamilton, Hendricks, Johnson,
Marion, and Morgan Counties) to attainment for the 1997 annual National
Ambient Air Quality Standard (NAAQS or standard) for fine particulate
matter (PM2.5) because the request meets the statutory
requirements for redesignation under the Clean Air Act (CAA). The
Indiana Department of Environmental Management (IDEM) submitted this
request to EPA on October 20, 2009, and supplemented it on May 31,
2011, January 17, 2013, and March 18, 2013. EPA's approval involves
several related actions. EPA is making a determination that the
Indianapolis area has attained the 1997 annual PM2.5
standard. EPA is approving, as a revision to the Indiana State
Implementation Plan (SIP), the state's plan for maintaining the 1997
annual PM2.5 NAAQS through 2025 in the area. EPA is
approving the comprehensive emissions inventories submitted by IDEM for
Nitrogen Oxides (NOX), Sulfur Dioxide (SO2),
primary PM2.5, Volatile Organic Compounds (VOC), and ammonia
as meeting the requirements of the CAA. Finally, EPA finds adequate and
is approving Indiana's NOX and PM2.5 Motor
Vehicle Emission Budgets (MVEBs) for 2015 and 2025 for the Indianapolis
area.

DATES: This final rule is effective July 11, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2009-0839. All documents in the docket are listed in
the www.regulations.gov index. 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, 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
Kathleen D'Agostino, Environmental Engineer, at<PHONE_NUMBER> 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,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
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 the actions?
II. What actions is EPA taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What is the background for the actions?

    On October 20, 2009, IDEM submitted its request to redesignate the
Indianapolis, Indiana nonattainment area (Hamilton, Hendricks, Johnson,
Marion, and Morgan Counties) to attainment for the 1997 annual
PM2.5 NAAQS, and for EPA approval of the SIP revision
containing an emissions inventory and a maintenance plan for the area.
IDEM supplemented its submission on May 31, 2011, January 17, 2013, and
March 18, 2013. On September 27, 2011, EPA published proposed (76 FR
59599) and direct final (76 FR 59512) rules making a determination that
the Indianapolis area is attaining the 1997 annual PM2.5
standard and that the area has met the requirements for redesignation
under section 107(d)(3)(E) of the CAA. EPA subsequently received
adverse comments on the direct final rule and withdrew it on November
27, 2011 (76 FR 70361). The proposal was not withdrawn. EPA published a
supplemental proposal on April 8, 2013 (78 FR 20856). EPA received an
adverse comment on the supplemental proposal.

II. What actions is EPA taking?

    EPA is making a determination that the Indianapolis area has
attained and continues to attain the 1997 annual PM2.5
standard, that the area has attained this standard by its applicable
attainment date of April 5, 2010, and that the area meets the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA proposed this determination based on monitoring data showing
attainment of the standard for the 2006-2008, 2007-2009, and 2008-2010
time periods. Quality-assured, certified monitoring data for 2011 show
that the area continues to attain the standard, with a 2009-2011 design
value of 13.1 [mu]g/m\3\ (see http://www.epa.gov/pm/2012/20092011table.pdf). Monitoring data that are now available for 2012
have been certified and are consistent with continued attainment as
well (see http://www.epa.gov/ttn/airs/airsaqs/).
    Because the area continues to attain the standard and meets all
other requirements for redesignation under CAA section 107(d)(3)(E),
EPA is approving the request from Indiana to change the legal
designation of the Indianapolis area from nonattainment to

attainment for the 1997 annual PM2.5 NAAQS.
    EPA is taking several actions related to Indiana's PM2.5
redesignation request, as discussed below.
    EPA is approving, pursuant to CAA section 175A, Indiana's 1997
annual PM2.5 maintenance plan for the Indianapolis area as a
revision to the Indiana SIP (such approval being one of the CAA
criteria for redesignation to attainment status). The maintenance plan
is designed to keep the Indianapolis area in attainment of the 1997
annual PM2.5 NAAQS through 2025.
    EPA is approving, pursuant to CAA section 172(c)(3), both the 2006
emission inventories for primary PM2.5,\1\ NOX,
and SO2,\2\ and the 2007/2008 emission inventories for VOC
and ammonia. These emission inventories satisfy the requirement in
section 172(c)(3) of the CAA for a comprehensive, current emission
inventory.
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    \1\ Fine particulates directly emitted by sources and not formed
in a secondary manner through chemical reactions or other processes
in the atmosphere.
    \2\ NOX and SO2 are precursors for fine
particulates through chemical reactions and other related processes
in the atmosphere.
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    Finally, for transportation conformity purposes EPA finds adequate
and is approving Indiana's NOX and PM2.5 MVEBs
for 2015 and 2025 for the Indianapolis area.

III. What is EPA's response to comments?

    EPA received adverse comments on the September 27, 2011, proposal
from Robert Ukeiley, on behalf of both Midwest Environmental Defense
Center Inc. and two citizens. Valley Watch joined these comments. EPA
received an adverse comment on the April 8, 2013, supplemental proposal
from Thomas Cmar of Earthjustice on behalf of Sierra Club. A summary of
the comments received, and EPA's responses, follow.
    Comment: The commenter contends that Indiana does not have an
adequate prevention of significant deterioration (PSD) program. He
further asserts that the PSD program is part of the SIP that an area
being redesignated needs to have to ensure that the area will stay in
attainment. As a result, the commenter takes the position that EPA
cannot approve the redesignation request because Indiana does not have
an adequate PM2.5 PSD program. The commenter bases his
conclusion that Indiana's PSD program is inadequate for
PM2.5 on the fact that the program does not contain specific
``significant emission rates'' \3\ for PM2.5 and its
precursors, and that the program does not include PM2.5
increments.
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    \3\ ``Significant'' emissions rates are listed in 326 IAC 2-2-
1(ww).
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    Response: On October 29, 2012, EPA approved revisions to Indiana's
PSD SIP. Specifically, EPA approved changes to 326 Indiana
Administrative Code (IAC) 2-2-1(ss), ``Regulated NSR pollutant,'' that
explicitly identify SO2 and NOX as precursors to
PM2.5 that will be evaluated in NSR permit contexts. EPA
also approved revisions to the definition of ``Significant'' at 326 IAC
2-2-1(ww)(1)(F) to identify the significant emissions rates for primary
PM2.5, and SO2 and NOX as its
precursors, consistent with the 2008 NSR Rule.
    On July 12, 2012, IDEM submitted PM2.5 increments for
approval into the Indiana SIP. EPA is currently in the process of
taking action on this submission. While Indiana's approved PSD SIP
currently lacks PM2.5 increments, this does not prevent the
program from addressing and helping to assure maintenance of the
PM2.5 standard in accordance with CAA section 175A. A PSD
increment is the maximum increase in concentration that is allowed to
occur above a baseline concentration for a pollutant. Even in the
absence of an approved PSD increment, Indiana's PSD program prohibits
air quality from deteriorating beyond the concentration allowed by the
applicable NAAQS. See 326 IAC 2-2-5(a)(1). Thus Indiana's PSD program
is adequate for purposes of assuring maintenance of the 1997 annual
PM2.5 standard as required by section 175A.
    For the reasons explained above, EPA concludes that the features of
the PSD program in Indiana's SIP do not detract from the program's
adequacy for purposes of maintenance of the standard and redesignation
of the area. It is, therefore, sufficient for the purposes of
maintaining the 1997 annual PM2.5 NAAQS in the Indianapolis
area.
    Comment: The commenter claims that there has not been a sufficient
showing that recent decreases in PM2.5 concentrations
reflected in monitoring data are due to enforceable and permanent
emission reductions.
    Response: In accordance with longstanding practice and policy,\4\
Indiana calculated the change in emissions between 2002, one of the
years used to designate the area as nonattainment, and 2008, one of the
years the Indianapolis area monitored attainment of the annual
PM2.5 standard. See Tables 3, 4 and 5 at 76 FR 59518-59519.
Because PM2.5 concentrations in the Indianapolis area are
impacted by the transport of sulfates and nitrates, local controls as
well as controls implemented in upwind areas are relevant to the
improvement in air quality in the Indianapolis area. The change in
emissions in upwind areas over this time period can be found in Table 6
at 76 FR 59519. The reduction in emissions and the corresponding
improvement in air quality over this time period can be attributed to a
number of permanent and enforceable regulatory control measures that
the Indianapolis area and upwind areas have implemented in recent years
and will continue to implement in the future.
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    \4\ See September 4, 1992 memorandum from John Calcagni entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' (``Calcagni Memorandum'') at 4 and 8-9.
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    Reductions in fine particle precursor emissions have occurred
statewide and in upwind areas as a result of several Federal mobile
source control measures including: Tier 2 Emission Standards for
Vehicles and Gasoline Sulfur Standards, the Heavy-Duty Diesel Engine
Rule, the Nonroad Diesel Rule, and Nonroad Large Spark-Ignition Engine
and Recreational Engine Standards. See 76 FR 59517.
    The Tier 2 Emission Standards for Vehicles and the associated
Gasoline Sulfur Standards were estimated to result in a 69 to 95
percent reduction in NOX emissions (depending on vehicle
type) and a reduction in the sulfur content of gasoline to 30 parts per
million (ppm).\5\ These Federal rules were phased in from 2004 to 2009.
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    \5\ Most gasoline sold in Indiana prior to January 2006 had a
sulfur content of about 500 ppm.
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    The Heavy-Duty Diesel Engine Rule reduced the highway diesel fuel
sulfur content to 15 ppm, with the total program estimated to achieve a
90 percent reduction in primary PM2.5 emissions and a 95
percent reduction in NOX emissions. This rule took effect in
2007.
    The Nonroad Diesel Rule and the associated Gasoline Sulfur
Standards are expected to reduce NOX and PM emissions from
large nonroad diesel engines by over 90 percent and have reduced the
sulfur content in nonroad diesel fuel by over 99 percent. The engine
emission standards required by this rule are being phased in between
2008 and 2014.
    The Nonroad Large Spark-Ignition Engine and Recreational Engine
Standards are being phased in from 2004 through 2012. Full
implementation of these engine standards are projected to result in an
overall 80 percent reduction in NOX emissions.

    For all of the engine standards described above, some of the
expected emissions reductions occurred during the 2008-2010 attainment
period; however, additional reductions will continue to occur
throughout the maintenance period as the fleet of older engines turns
over. It should be noted, though, that the reduction in fuel sulfur
content yielded an immediate reduction in sulfate particle emissions
from all engines using the low-sulfur fuel.
    On October 27, 1998 (63 FR 57356), EPA issued a SIP call under CAA
section 110(k)(5), commonly referred to as the NOX SIP Call.
This rule required the District of Columbia and 22 states to reduce
emissions of NOX in order to comply with CAA section
110(a)(2)(D)(i)(I)--the ``good neighbor'' provision of the CAA.
Affected states were required to comply with Phase I of the SIP Call
beginning in 2004, and Phase II beginning in 2007. Overall, sources
covered by the NOX SIP Call reduced NOX emissions
62 percent between 2000 (prior to implementation of the NOX
SIP call) and 2008. Emission reductions requirements from the
NOX SIP Call still exist. Most states that were subject to
the NOX SIP Call, including Indiana, are now complying with
those requirements through participation in the Clean Air Interstate
Rule (CAIR) ozone-season NOX trading program. However, while
EPA has acknowledged that participation in the CAIR ozone-season
NOX trading program is one acceptable way for states to meet
their NOX SIP Call obligations, the NOX SIP Call
obligations exist independent of CAIR and are independently permanent
and enforceable.
    On May 12, 2005, EPA published CAIR, which requires significant
reductions in emissions of SO2 and NOX from
electric generating units to limit the interstate transport of these
pollutants and the ozone and fine particulate matter they form in the
atmosphere. See 76 FR 70093. The D.C. Circuit initially vacated CAIR,
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178
(D.C. Cir. 2008). In response to the Court's decision, EPA issued the
Cross-State Air Pollution Rule (CSAPR) to address interstate transport
of NOX and SO2 in the eastern United States. See
76 FR 48208 (August 8, 2011).
    On December 30, 2011, the D.C. Circuit issued an order addressing
the status of CSAPR and CAIR in response to motions filed by numerous
parties seeking a stay of CSAPR pending judicial review. In that order,
the Court stayed CSAPR pending resolution of the petitions for review
of that rule in EME Homer City Generation, L.P. v. EPA (No. 11-1302 and
consolidated cases). The Court also indicated that EPA was expected to
continue to administering CAIR.
    On August 21, 2012, the D.C. Circuit issued the decision in EME
Homer City, to vacate and remand CSAPR and ordered EPA to continue
administering CAIR ``pending . . . development of a valid
replacement.'' EME Homer City at 38.\6\ To the extent that attainment
is due to emission reductions associated with CAIR, as explained in
greater detail in the subsequent comment response, EPA is determining
that those reductions are sufficiently permanent and enforceable for
purposes of CAA sections 107(d)(3)(E)(iii) and 175A.
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    \6\ On June 24, 2013, the Supreme Court granted certiorari and
agreed to review the D.C. Circuit's decision in EME Homer City. The
Supreme Court's grant of certiorari, by itself, does not alter the
status of CAIR or CSAPR. At this time, CAIR remains in place.
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    As directed by the D.C. Circuit, CAIR remains in place and
enforceable until EPA promulgates a valid replacement rule to
substitute for CAIR. Indiana's SIP revision lists CAIR as a control
measure that was adopted by the State in 2006 and required compliance
by January 1, 2009. CAIR was thus in place and getting emission
reductions when Indianapolis began monitoring attainment of the 1997
annual PM2.5 standard during the 2006-2008 time period. The
quality-assured, certified monitoring data continues to show the area
in attainment of the 1997 PM2.5 standard through 2011.
    Comment: The commenter urges EPA not to rely upon future emissions
reductions from CAIR as permanent and enforceable for purposes of
approving the Indianapolis redesignation and maintenance plan. The
commenter argues that reliance on CAIR would be arbitrary, capricious,
and contrary to law, because of the D.C. Circuit's decision in North
Carolina v. EPA, which found CAIR to be legally defective and remanded
the rule to EPA. Thus, the commenter argues that CAIR is temporary. The
commenter notes that EPA's decision to rely on CAIR reductions as
sufficiently permanent and enforceable for the purposes of the
Indianapolis redesignation is a change in EPA's position, and, contrary
to EPA's assertion, that decision is in tension with the D.C. Circuit's
order to replace CAIR as expeditiously as practicable in EME Homer City
Generation, LLP v. EPA, 696 F.3d 7 (D.C. Cir. 2012).
    Furthermore, the commenter states that EPA has not provided ``a
specific analysis of the extent to which redesignation of the
Indianapolis area to attainment and Indiana's plan for maintaining that
attainment status depend upon future emission reductions from CAIR.''
The commenter argues that without such an analysis it is impossible to
evaluate whether CAIR's sunsetting and replacement by a different rule
would have an impact on the attainment status of Indianapolis. The
commenter points out that a replacement rule may require a different
distribution of reductions than CAIR, and states that the agency's
``implied promise'' that a future replacement rule will be comparable
to CAIR ``does not withstand scrutiny in the absence of an area-
specific analysis.'' The commenter urges the agency to act quickly to
promulgate a new rule to replace CAIR if it wants to rely on emission
reductions in this context for purposes of redesignation.
    Response: EPA disagrees with the commenter that it is arbitrary,
capricious, or contrary to law to approve the Indianapolis
redesignation because CAIR cannot be relied upon in this context.
Section 107(d)(3)(E) of the CAA sets out the requirements for
redesignation, and states in relevant part that the Administrator must
``determine[] that the improvement in air quality is due to permanent
and enforceable reductions in emissions resulting from implementation
of the applicable implementation plan and applicable Federal air
pollutant control regulations and other permanent and enforceable
reductions.'' 42 U.S.C. 7407(d)(3)(E)(iii).
    EPA recognizes that the D.C. Circuit's instruction in both North
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008), and EME Homer
City Generation L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), that CAIR
must be replaced necessarily means that CAIR will at some point cease
to be in effect. However, EPA disagrees that the Court's instruction in
those two cases forecloses the Agency and states from relying on CAIR
for purposes such as redesignating an area from nonattainment to
attainment. Subsection (iii) of section 107(d)(3)(E) is a backwards
looking requirement; it requires that the attainment air quality in the
area is ``due to'' permanent and enforceable emissions reductions. The
purpose of this requirement is to ensure that in redesignating areas
from nonattainment to attainment, EPA does not rely on ephemeral,
temporarily improved air quality that results from circumstances such
as temporary shutdowns of plants or reduced

emission rates because of slowed production. See ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992 (Calcagni memorandum) at 4. The structure of section
107(d)(3)(E)(iii) indicates that the CAA generally considers reductions
resulting from SIPs and Federal regulations as permanent and
enforceable. It references ``other'' reductions that are comparable to
measures adopted into SIPs or Federally adopted regulations and can
therefore also qualify as permanent and enforceable reductions,
indicating that, in general, SIP reductions and reductions from Federal
regulations are the types of reductions that the CAA views in the first
instance as having the requisite permanence and enforceability for
purposes of redesignation.
    EPA acknowledges that prior to the EME Homer City decision, it did
not rely solely on CAIR to meet section 107(d)(3)(E)(iii)'s
requirements, but rather the combination of CAIR being in place through
the time period of the area coming into attainment, with CSAPR
achieving similar or greater emission reductions in the area in 2012
and beyond. See, e.g., Approval and Promulgation of Implementation
Plans and Designation of Areas for Air Quality Planning Purposes;
Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-
Hamilton 1997 Annual Fine Particulate Matter Nonattainment Area to
Attainment, 76 FR 65458, 65460 (Oct. 21, 2011); Regional Haze:
Revisions to Provisions Governing Alternatives to Source-Specific Best
Available Retrofit Technology (BART) Determinations, Limited SIP
Disapprovals, and Federal Implementation Plans, 77 FR 33642, 33645
(June 7, 2012). It is not unreasonable or arbitrary for the agency to
reassess its position about whether the reductions of CAIR alone can be
considered sufficiently permanent and enforceable for purposes of
redesignation, in light of the D.C. Circuit's vacatur of CSAPR in EME
Homer City and related decision that EPA should continue administering
CAIR.
    Contrary to the commenters' assertions, EPA's decision to rely on
CAIR for purposes of redesignating the Indianapolis area is not in
tension with the Court's instruction in EME Homer City to act
expeditiously on remand. EME Homer City, 696 F.3d at 38 n.35. The D.C.
Circuit in EME Homer City held that ``a SIP logically cannot be deemed
to lack a ``required submission'' before EPA quantifies the good
neighbor obligation.'' Id. at 32. Under this holding states have no
obligation to submit ``good neighbor'' SIPs until EPA has quantified
their ``good neighbor'' obligations and EPA may not promulgate a FIP to
address such obligations until the Agency first quantifies the state's
obligations, and provides the state an opportunity to submit a plan
consistent with that defined obligation. 696 F.3d at 28-37. The EME
Homer City decision thus significantly lengthens the time it will take
to get in place regulations to replace the remanded CAIR. Under the EME
Homer City decision SIP provisions to replace CAIR could not go into
effect until EPA has undertaken analysis and rulemaking to define
states' obligations in accordance with the other statutory requirements
identified by the EME Homer City court, provided states adequate time
to develop implementation plans consistent with the defined
obligations, and EPA has reviewed and approved the SIP submissions in
notice-and-comment rulemakings. Similarly, no FIP to replace CAIR could
go into effect unless EPA found a state failed to submit a SIP within
the time given to develop such implementation plans or disapproved such
a SIP submittal. It is not unreasonable for EPA to determine that in
light of these circumstances, CAIR will be in place for a significant
amount of time. The commenter suggests that EPA may not redesignate
Indianapolis until it has completed all of the steps required by EME
Homer City to promulgate a replacement rule. EPA disagrees. As noted in
the April 8, 2013, supplemental proposal (78 FR 20856), EPA believes
that relying on CAIR emission reductions in order to redesignate the
Indianapolis area, which has been attaining the NAAQS for many years
and continues to maintain the standard, is precisely the type of
``reliance interest'' that the D.C. Circuit was concerned about in
ordering the agency to continue administering CAIR. EME Homer City, 696
F.3d at 38.
    EPA also disagrees that it must conduct the type of specific
analysis requested by the commenter in order to approve Indianapolis'
maintenance plan under section 175A. Section 175A requires states to
submit a maintenance plan that provides for the maintenance of the
NAAQS for the relevant air pollutant for ten years following
redesignation. 42 U.S.C. 7505a(a). In the April 8, 2013, supplemental
proposal, EPA provided projected emissions of direct PM2.5,
SO2, NOX, VOCs and ammonia in the Indianapolis
area for the relevant maintenance period. See 78 FR 20864, tbls. 1-4.
Under its existing suite of control measures, including CAIR,
Indianapolis is attaining the 1997 PM2.5 NAAQS. Over the
maintenance period, emissions for each pollutant and precursor are
expected to further decrease in the Indianapolis area. EPA therefore
does not believe that an ``area-specific analysis'' as requested by the
commenter is necessary or appropriate in order to redesignate the
Indianapolis area.
    The anticipation that CAIR may be replaced during the maintenance
period by another rule requiring upwind sources to reduce emissions
does not require EPA to disapprove the redesignation request for
Indianapolis currently before it. EPA's longstanding interpretation of
section 107(d)(3)(E) in the Calcagni Memorandum contemplates that some
reductions required by existing control measures may be replaced in the
future by other measures. Specifically, it states that ``the State will
be expected to maintain its implemented control strategy despite
redesignation to attainment, unless such measures are shown to be
unnecessary for maintenance or are replaced with measures that achieve
equivalent reductions.'' Calcagni Memorandum at 10. As noted in the
supplemental proposal, upon promulgation of the replacement rule for
CSAPR and CAIR, EPA will review existing SIPs as appropriate, including
maintenance plans, to identify whether discrepancies in emission
reductions from the control measures will pose a threat to the
maintenance of the NAAQS for that pollutant. Therefore, the commenter's
concern that a future replacement rule might not require the same
reductions as CAIR is not a bar to approving Indiana's redesignation
request today. The commenter's statement that ``if EPA wants to rely on
emissions reductions for a CAIR replacement rule to support the
redesignation of areas such as Indianapolis and their maintenance
plans, then EPA should move without delay to develop and promulgate a
legally defensible rule to replace CAIR'' misstates EPA's position. EPA
is not relying on emissions reductions from a CAIR replacement rule in
approving the maintenance plan for Indianapolis. Rather, EPA is relying
on CAIR, which is currently in place and will remain in place for a
significant period of time, in approving the maintenance plan. EPA
further notes that any rule promulgated to replace CAIR with respect to
PM2.5 will need to ensure that the ``good neighbor''
provisions have been

satisfied with regard to the 1997 annual PM2.5 NAAQS.

IV. Why is EPA taking these actions?

    EPA has determined that the Indianapolis area has attained and
continues to attain the 1997 annual PM2.5 NAAQS and that the
area has attained this standard by its applicable attainment date of
April 5, 2010. EPA has also determined that all other criteria have
been met for the redesignation of the Indianapolis area from
nonattainment to attainment of the 1997 annual PM2.5 NAAQS
and for approval of Indiana's maintenance plan for the area. See CAA
sections 107(d)(3)(E) and 175A. The detailed rationale for EPA's
findings and actions is set forth in the proposed and direct final
rulemakings of September 27, 2011 (76 FR 59599 and 76 FR 59512), in the
supplemental proposed rulemaking of April 8, 2013 (78 FR 20856) and in
this final rulemaking.

V. Final Action

    EPA is making a determination that the Indianapolis area has
attained the 1997 annual PM2.5 standard by its attainment
date and that the area continues to attain the standard. EPA is
determining that the area has met the requirements for redesignation
under section 107(d)(3)(E) and 175A of the CAA. EPA is thus approving
the request from Indiana to change the legal designation of the
Indianapolis area from nonattainment to attainment for the 1997 annual
PM2.5 NAAQS. EPA is also approving Indiana's
PM2.5 maintenance plan for the Indianapolis area as a
revision to the Indiana SIP because the plan meets the requirements of
section 175A of the CAA. EPA is approving 2006 emissions inventories
for primary PM2.5, NOX, and SO2, and
2007/2008 emission inventories for VOC and ammonia as satisfying the
requirement in section 172(c)(3) of the CAA for a comprehensive,
current emission inventory. Finally, EPA finds adequate and is
approving 2015 and 2025 primary PM2.5 and NOX
MVEBs for the Indianapolis area. These MVEBs will be used in future
transportation conformity analyses for the 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.

VI. 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.
Accordingly, these actions merely do not impose additional requirements
beyond those imposed by state law and the CAA. For that reason, these
actions:
     Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     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 economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Are not significant regulatory actions 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 CAA; 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 a determinations of attainment is an action that affects the
status of a geographical area and does not impose any new regulatory
requirements on tribes, impact any existing sources of air pollution on
tribal lands, nor impair the maintenance of ozone national ambient air
quality standards in tribal lands.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. These actions are not ``major rules'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 9, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions for the

purposes of judicial review nor does it extend the time within which a
petition for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. These actions may not be
challenged later in proceedings to enforce their requirements. (See
section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks,
Wilderness areas.

    Dated: June 26, 2013.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR Parts 52 and 81 are 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 52.776 is amended by adding paragraphs (v)(2) and (w)(2) to
read as follows:

Sec.  52.776  Control strategy: Particulate matter.

* * * * *
    (v) * * *
    (2) The Indianapolis area (Hamilton, Hendricks, Johnson, Marion and
Morgan Counties), as submitted on October 20, 2009, and supplemented on
May 31, 2011, January 17, 2013, and March 18, 2013. The maintenance
plan establishes 2015 motor vehicle emissions budgets for the
Indianapolis area of 853.76 tpy for primary PM2.5 and
25,314.49 tpy for NOX and 2025 motor vehicle emissions
budgets of 460.18 tpy for primary PM2.5 and 13,368.60 tpy
for NOX.
    (w) * * *
    (2) Indiana's 2006 NOX, primary PM2.5, and
SO2 emissions inventories and 2007/2008 VOC and ammonia
emission inventories, as submitted on October 20, 2009 and supplemented
on May 31, 2011 and March 18, 2013, satisfy the emission inventory
requirements of section 172(c)(3) of the Clean Air Act for the
Indianapolis area.
* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

0
4. Section 81.315 is amended by revising the entry for Indianapolis, IN
in the table entitled ``Indiana PM2.5 (Annual NAAQS)'' to
read as follows:

Sec.  81.315  Indiana.

* * * * *

                      Indiana PM2.5 (Annual NAAQS)
------------------------------------------------------------------------
                                              Designation \a\
         Designated area          --------------------------------------
                                     Date \1\             Type
------------------------------------------------------------------------

                              * * * * * * *
Indianapolis, IN:
    Hamilton County..............    7/11/2013  Attainment.
    Hendricks County.............    7/11/2013  Attainment.
    Johnson County...............    7/11/2013  Attainment.
    Marion County................    7/11/2013  Attainment.
    Morgan County................    7/11/2013  Attainment.

                              * * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
  otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.

* * * * *
[FR Doc. 2013-16478 Filed 7-10-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: October 18, 2005 (Volume 70, Number 200)]
[Notices]
[Page 60576-60577]
[DOCID:fr18oc05-126]

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SECURITIES AND EXCHANGE COMMISSION

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Filings and Information Services, Washington, DC
20549.

Extension:
    Form 10-SB; OMB Control No. 3235-0419; SEC File No. 270-367.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
    Form 10-SB is used to register classes of securities of small
business issuers pursuant to Section 12 of the Securities Exchange Act
of 1934 to provide material information necessary for

informed investment decisions. Every issuer subject to Sections 13(a)
and 15(d) under the Exchange Act must file a periodic report with the
Commission containing information about its business and financial
condition. We estimate that Form 10-SB takes approximately 133 hours
per response and is filed by 254 respondents. It is estimated that 25%
of the 33,782 annual burden hours (8,446 burden hours) would be
prepared by the company.
    Written comments are invited on: (a) Whether this collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
collections of information; (c) ways to enhance the quality, utility,
and clarity of the information collected; and (d) ways to minimize the
burden of the collection of information on respondents, including
through the use of automated collection techniques or other forms of
information technology. Consideration will be given to comments and
suggestions submitted in writing within 60 days of this publication.
    Please direct your written comments to R. Corey Booth, Director/
Chief Information Officer, Office of Information Technology, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549.

    Dated: October 7, 2005.
Jill M. Peterson,
Assistant Secretary.
 [FR Doc. E5-5729 Filed 10-17-05; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 91841-91846]
[FR Doc No: 2016-30330]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R05-OAR-2016-0277; FRL-9956-95-Region 5]

Reclassification of the Sheboygan, Wisconsin Area To Moderate
Nonattainment for the 2008 Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is determining that
the Sheboygan, Wisconsin area (Sheboygan County) has failed to attain
the 2008 ozone National Ambient Air Quality Standards (NAAQS) by the
applicable attainment date of July 20, 2016, and that this area is not
eligible for an extension of the attainment date. Thus, EPA is
reclassifying this area as ``moderate'' nonattainment for the 2008
ozone NAAQS. The State of Wisconsin must submit State Implementation
Plan (SIP) revisions that meet the statutory and regulatory
requirements that apply to areas classified as moderate nonattainment
for the 2008 ozone NAAQS by January 1, 2017.

DATES: This final rule is effective December 19, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2016-0277. All documents in the docket are listed in
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information 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 through
http://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

I. What is being addressed in this document?

    Clean Air Act (CAA) section 181(b)(2) requires EPA to determine,
based on an area's ozone design value \1\ as of the area's attainment
deadline, whether the area has attained the ozone standard by that
date. The statute provides a mechanism by which states that meet
certain criteria may request and be granted by the EPA Administrator a
one-year extension of an area's attainment deadline. The CAA also
requires that areas that have not attained the standard by their
attainment deadlines be reclassified to either the next ``highest''
classification (e.g., marginal to moderate, moderate to serious, etc.)
or to the classifications applicable to the areas' design values.
---------------------------------------------------------------------------

    \1\ An area's ozone design value for the eight-hour ozone NAAQS
is the highest three-year average of the annual fourth-highest daily
maximum eight-hour average concentrations of all monitors in the
area. To determine whether an area has attained the ozone NAAQS
prior to the attainment date, EPA considers the monitor-specific
ozone design values in the area for the most recent three years with
complete, quality-assured monitored ozone data prior to the
attainment deadline.
---------------------------------------------------------------------------

    On April 30, 2012, the Sheboygan area was designated as
nonattainment for the 2008 ozone NAAQS and was classified as marginal,
effective July 20, 2012 (77 FR 30088, May 21, 2012). Wisconsin
submitted a letter to EPA requesting a one-year extension of the
attainment deadline for the Sheboygan area under section 181(a)(5) of
the CAA. In that letter, Wisconsin certified that the State had
complied with all requirements and commitments pertaining to the
Sheboygan area in the SIP and that all monitors in the area had a
fourth highest daily maximum 8-hour average of 0.075 parts per million
(ppm) or less for 2014 (i.e., the last full year of air quality data
prior to the July 20, 2015, attainment date). On May 4, 2016 (81 FR
26697), based on EPA's evaluation and determination that the area met
the attainment date extension criteria of CAA section 181(a)(5), EPA
granted the Sheboygan area a one-year extension of the marginal area
attainment date to July 20, 2016.
    Wisconsin did not request a second one-year extension for the
Sheboygan area, and the area would not have qualified for one under CAA
section 181(a)(5) because, at 0.076 ppm, the average of the 2014 and
2015 annual fourth highest daily maximum eight-

hour average ozone concentrations at a monitor in the area is greater
than 0.075 ppm. On September 28, 2016 (81 FR 66617), EPA proposed to
determine that the Sheboygan area failed to attain the 2008 ozone NAAQS
by the applicable attainment date of July 20, 2016, is not eligible for
an additional one-year attainment date extension, and must be
reclassified as moderate nonattainment. EPA also proposed to require
Wisconsin to submit SIP revisions to address moderate area requirements
by January 1, 2017.

II. What comments did we receive on the proposed rule and how are we
responding to those comments?

    EPA provided a 30-day review and comment period on the proposed
action. Adverse comments are summarized and addressed below.
    Comment 1: There are two ozone monitoring sites in the Sheboygan
area. The first is located at Kohler Andrae State Park along Lake
Michigan and southeast of the City of Sheboygan, the main urban area of
the county. The ozone detected by the Kohler monitor does not come from
the Sheboygan area, but from areas along southern Lake Michigan, namely
Chicago, IL and Gary, IN. This site has been operational since June
1997. The second monitoring site, known as Haven, is located northwest
and downwind of the City of Sheboygan and has been operational since
April 2014.
    EPA's nonattainment re-designation is based exclusively on data
from the Kohler Andrae monitor. Once 2016 data are certified, the Haven
monitor will have three complete years of data for this site. Based on
these data, the Haven monitor will have a design value of 0.069 ppm, as
compared to 0.079 ppm at the Kohler Andrae monitor.\2\ These data show
that actual air quality within the Sheboygan area is in compliance with
the 2008 ozone standard. EPA should allow Wisconsin to certify these
data and consider all available regulatory data prior to making a re-
designation for the entire county.
---------------------------------------------------------------------------

    \2\ The level of the 2008 ozone standard is 0.075 ppm.
---------------------------------------------------------------------------

    Response 1: CAA section 181(b)(2) requires EPA to determine, based
on an area's ozone design value as of the area's attainment
deadline,\3\ whether the area has attained the ozone standard by that
date. The CAA also requires that any area \4\ that EPA finds has not
attained the standard by the attainment deadline shall be reclassified
by operation of law to the higher of the next ``highest''
classification (e.g., marginal to moderate, moderate to serious, etc.)
or the classification applicable to the area's design value. Further,
the agency's mandatory duty to make determinations of attainment or
failure to attain the NAAQS exists regardless of the nature or effect
of transported ozone and emissions on monitored air quality data in a
given nonattainment area.\5\
---------------------------------------------------------------------------

    \3\ Section 181(a)(5) of the CAA gives the Administrator the
discretion to grant up to two one-year extensions of the attainment
date upon application by any state if certain criteria are met.
Wisconsin did not request a second one-year attainment date
extension, and the Sheboygan area would not have met the criteria
required for EPA to grant one.
    \4\ Except those classified as severe or extreme.
    \5\ See Sierra Club v. EPA, 294 F.3d 155, 160-62 (D.C. Cir.
2002) (holding that the EPA is not permitted to relax mandatory
statutory requirements for downwind areas on the basis of interstate
transport).
---------------------------------------------------------------------------

    Under EPA regulations at 40 CFR part 50, appendix P, the 2008 ozone
NAAQS is attained at a monitoring site when the three-year average of
the annual fourth-highest daily maximum eight-hour average ambient air
quality ozone concentration is less than or equal to 0.075 ppm.\6\ This
three-year average is referred to as the design value. When the design
value is less than or equal to 0.075 ppm at each ambient air quality
monitoring site within the area, the area is deemed to be meeting the
NAAQS. If the design value is greater than 0.075 ppm at any site in the
area, the area is deemed to be violating the NAAQS.
---------------------------------------------------------------------------

    \6\ The rounding convention under 40 CFR part 50, appendix P,
dictates that concentrations shall be reported in ppm to the third
decimal place, with additional digits to the right being truncated.
Thus, a computed three-year average ozone concentration of 0.076 ppm
is greater than 0.075 ppm and, therefore, over the standard.
---------------------------------------------------------------------------

    Therefore, even if the Haven monitoring site had three years of
complete, quality-assured, and certified ozone data showing a design
value below the standard for the 2013-2015 time period, EPA would still
be compelled to determine that the area failed to attain the standard
due to the violation recorded at the Kohler Andrae monitor.
    Comment 2: EPA's guidance on monitoring site selection states,
``[f]or regulatory compliance, the principle objective is to measure
the ozone concentration in the high population density areas and the
maximum downwind concentration from the urban region.'' The Kohler
Andrae monitor is not located downwind from sources in the Sheboygan
area. The monitor's location in no way could be seen as measuring ozone
concentration in an area with the maximum downwind concentration from
the urban region.
    Response 2: The siting of the Kohler Andrae monitor is consistent
with EPA's monitoring site selection guidance. EPA's monitoring
guidance does not prevent placement of monitors upwind of urban source
areas. In addition, the Kohler Andrae monitor was not placed to monitor
the maximum downwind impacts from the urbanized portion of the
Sheboygan area, but to capture maximum downwind impacts from several
urban areas along Lake Michigan, including Milwaukee, Wisconsin;
Chicago, Illinois; and Gary, Indiana. The fact that the Kohler Andrae
site is monitoring the highest ozone concentrations in Wisconsin
supports the appropriateness of its selection as a maximum downwind
site.
    Comment 3: The Haven monitor is located approximately six miles
northwest of the City of Sheboygan. Wisconsin established this monitor
specifically to provide accurate downwind measurements of air quality
for the Sheboygan area. This monitor's location makes it a much more
appropriate monitor to use for compliance with ozone standards because
it is placed in a location that will actually monitor ozone generated
from Sheboygan area facilities.
    Response 3: EPA recognizes that the Haven monitor provides
additional air quality data that can be used in conjunction with the
air quality data from the Kohler Andrae monitor to form a more complete
understanding of ozone values throughout the Sheboygan area. This
information can be considered when making nonattainment area boundary
decisions for any future ozone designations. The Sheboygan area,
consisting of the entirety of Sheboygan County, was designated as
nonattainment for the 2008 ozone standard on April 30, 2012. EPA
considered the recommendation of the state and the information
available at the time to determine the appropriate boundary for the
area. At that time, the Haven monitor ozone data were not available for
consideration. That designation is not being reevaluated in this
rulemaking.
    In this action EPA is meeting its statutory obligation under
section 181(b)(2) of the CAA to determine, based on the area's ozone
design value as of the area's attainment deadline, whether the
Sheboygan area has attained the 2008 ozone standard. As discussed more
completely in response to Comment 1, if any monitor in an area shows a
violation of the ozone NAAQS during the most recent three-year period
with complete, quality assured, and certified ozone data before the
attainment deadline, and the state fails to meet the requirements for
an attainment date extension set forth in

section 181(a)(5) of the CAA, EPA is obligated to determine that the
area has failed to attain the standard by the attainment date.
Therefore, even were EPA able to consider data from the Haven monitor,
EPA cannot ignore the data recorded at the Kohler Andrae monitor, which
is also located within the Sheboygan nonattainment area. Quality
assured, certified data from the Kohler Andrae monitor show that the
area failed to attain the 2008 ozone standard by its attainment
deadline and, thus, EPA is obligated to make that finding. EPA's
finding that the area failed to attain the standard by the attainment
deadline requires EPA to reclassify the area by operation of law.
Further, as discussed above, the agency's mandatory duty to make
determinations of attainment or failure to attain the NAAQS exists
regardless of the nature or effect of transported emissions on
monitored air quality data in a given nonattainment area.
    Comment 4: The State of Wisconsin has worked with EPA to address
the issue of an upwind compliance monitor unfairly subjecting an entire
county to a nonattainment designation in Kenosha County. At the very
least, EPA should consider changing the geographic boundaries of the
Sheboygan nonattainment area to exclude those portions of the county
which are clearly in attainment according to data from the Haven
monitor. Reclassifying only part of Sheboygan County would allow for
more regulatory certainty for businesses and residents of the area as
well as provide a more fair and appropriate regulatory solution than
holding the entire county accountable as the air quality data clearly
shows substantial attainment with the 2008 standard in large portions
of the county.
    Response 4: As discussed in the previous response, in this action,
EPA is meeting its statutory obligation under section 181(b)(2) of the
CAA. This action does not grant EPA the authority to reopen the
boundary determinations that were made when the Sheboygan area was
designated as nonattainment for the 2008 ozone standard.\7\ However,
EPA and the states are currently in the process of designating areas
under the 2015 ozone standard. The arguments presented by the commenter
as well as other supporting information may be provided by the State to
support its boundary recommendations for the 2015 ozone NAAQS and would
be considered by EPA when finalizing area designations and boundaries
for that ozone standard.
---------------------------------------------------------------------------

    \7\ 77 FR 30088 (May 21, 2012).
---------------------------------------------------------------------------

    Comment 5: Reclassification to moderate increases the emission
offsets required for new and modified major sources, which could
restrict future growth for sources in the Sheboygan area. In addition,
the majority of ozone precursor emissions in the Sheboygan area are
located downwind of the Kohler Andrae ozone monitor. These facilities
may be subject to increased regulations even though they are not likely
contributing on days with higher ozone concentrations at the Kohler
Andrae monitor.
    Response 5: EPA acknowledges that a reclassification to moderate
increases emission offsets required for new and modified major sources
from 1.1 to 1 (for marginal areas) to 1.15 to 1 (for moderate areas).
This offset ratio is established by section 181(b)(5) of the CAA.
Increased offset ratios are intended to mitigate the impact of new
ozone precursor sources to an existing ozone air quality problem and to
avoid the propagation of this ozone problem to areas downwind of the
violating monitoring site.
    Comment 6: EPA should not finalize this action. Wisconsin's
lakeshore air quality is heavily impacted by ozone precursors
originating from out of state. The Sheboygan area, in particular, has
long suffered the consequences of diminished air quality and resulting
nonattainment due to emissions originating beyond Wisconsin's borders.
To meet its CAA obligations, Wisconsin has already taken a wide range
of actions to reduce emissions in order to improve the air quality of
the Sheboygan area. Source apportionment modeling from the Lake
Michigan Air Directors Consortium (LADCO) has suggested that the entire
State of Wisconsin contributes less than 10% of the ozone monitored in
the Sheboygan area. Any further actions taken by the state to address
moderate area planning requirements for this NAAQS are unlikely to
significantly improve the Sheboygan area's air quality. EPA must
expeditiously and more completely address the contributions of upwind
state emissions to this region of Wisconsin.
    Response 6: EPA readily acknowledges the role interstate transport
of precursors and ozone pollution plays in the efforts of downwind
areas to attain and maintain the NAAQS. Section 110(a)(2)(D) of the CAA
specifically contains provisions requiring states to address their
contribution to nonattainment and maintenance of the NAAQS in other
states. CAA section 110(a)(2)(D)(i)(I) requires each state in its SIP
to prohibit emissions that will significantly contribute to
nonattainment of a NAAQS, or interfere with maintenance of a NAAQS, in
another state. Under section 110(a)(2)(D)(i)(I), each state is required
to submit to the EPA new or revised SIPs that contain adequate
provisions ``prohibiting, consistent with the provisions of this
subchapter, any source or other type of emissions activity within the
state from emitting any air pollutant in amounts which will . . .
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with respect to any such national
primary or secondary ambient air quality standard.''
    EPA has taken a number of steps to fulfill its statutory obligation
to enforce CAA section 110(a)(2)(D), or the ``good neighbor''
provision, including the NOX SIP Call, the Clean Air
Interstate Rule, and the Cross-State Air Pollution Rule (CSAPR). Most
recently, on October 26, 2016 (81 FR 74504), EPA updated CSAPR
specifically to address the 2008 ozone NAAQS with tightened ozone
NOX emission budgets designed to achieve emission reductions
in upwind states before the July 2018 moderate area attainment date.\8\
---------------------------------------------------------------------------

    \8\ In updating CSAPR to address the 2008 ozone standard, EPA
established ozone season NOX emissions budgets of 14,601
tons for Illinois and 23,303 tons for Indiana. See 81 FR 74504,
74508 (October 26, 2016). This tightened the CSAPR emission budgets
of 21,208 tons for Illinois and 46,175 tons for Indiana, which had
been established to address the 1997 ozone standard. See 76 FR
48208, 48262-63 (August 8, 2011).
---------------------------------------------------------------------------

    In addition, in recognition of the regional nature of ozone
formation and transport, the Lake Michigan Air Directors Consortium was
created to provide a forum for the states surrounding Lake Michigan to
work cooperatively to develop attainment strategies for the entire Lake
Michigan region. EPA continues to encourage the states to work
cooperatively through this forum to reach attainment goals throughout
the region.
    Nevertheless, as noted previously, the agency's mandatory duty to
make determinations of attainment or failure to attain the NAAQS under
section 181(b)(2) of the CAA exists regardless of the nature or effect
of transported emissions on monitored air quality data in a given
nonattainment area.
    Comment 7: EPA's proposed rule states ``moderate nonattainment
areas are required to attain the standard `as expeditiously as
practicable' but no later than six years after the initial designation
as nonattainment (which, in the case of the Sheboygan area, would be
July 20, 2018).'' EPA is proposing to require submission of the
necessary

moderate area SIP revisions no later than January 1, 2017. EPA is
unlikely to finalize a reclassification until just weeks before the
proposed January 1, 2017 due date. This is insufficient time for a
state to complete all the actions needed to meet moderate nonattainment
area requirements for this NAAQS. EPA must finalize a more realistic
deadline and ensure the state is not penalized for any deficiency
relative to that date.
    Response 7: EPA recognizes the extremely tight timeframe and is
committed to working with Wisconsin to prepare SIP revisions in a
timely manner. EPA's ability to extend deadlines for areas being
reclassified as required by CAA section 181(b)(2) is governed by
section 182(i) of the CAA, which directs that the state shall meet the
new requirements according to the schedules prescribed in those
requirements, but provides ``that the Administrator may adjust any
applicable deadlines (other than attainment dates) to the extent such
adjustment is necessary or appropriate to assure consistency among the
required submissions.'' CAA section 182(b), as interpreted by 40 CFR
51.1100 et seq., describes the required SIP revisions and associated
deadlines for a nonattainment area classified as moderate at the time
of the initial designations. However, these SIP submission deadlines
(e.g., three years after the effective date of designation, or July
2015, for submission of an attainment plan and attainment
demonstration) have already passed. Accordingly, EPA proposed to
exercise its discretion under CAA section 182(i) to adjust the moderate
SIP submittal deadlines for the Sheboygan area.
    In determining an appropriate deadline for the moderate area SIP
revisions for the Sheboygan area, EPA had to consider that pursuant to
40 CFR 51.1108(d), the state must provide for implementation of all
control measures needed for attainment no later than the beginning of
the attainment year ozone season. The attainment year ozone season is
the complete ozone season immediately preceding a nonattainment area's
attainment date. In the case of nonattainment areas classified as
moderate for the 2008 ozone NAAQS, the attainment year ozone season is
the 2017 ozone season (40 CFR 51.1100(h)). Because an extension of the
attainment date is not appropriate here, and control measures for other
moderate areas are to be implemented no later than the beginning of the
2017 ozone season, EPA determined it would not be appropriate to adjust
the attainment date beyond the beginning of the 2017 ozone season for
the Sheboygan area. Further, because ozone seasons begin as early as
January 1, EPA determined that a SIP submission deadline of January 1,
2017, is the latest submittal deadline that allows all states to meet
40 CFR 51.1108(d) requirements, and thus assures consistency as
directed by 182(i).
    While we acknowledge that the timeframe for submitting the required
SIP revisions is tight, states have not been prohibited from beginning
development of moderate area SIP revisions prior to finalization of the
reclassification. In fact, although reclassification of the Sheboygan
area is being finalized in this rule, Wisconsin has been aware that EPA
would propose to reclassify the Sheboygan area as moderate from the
time that 2015 monitoring data became available showing that the
Sheboygan area would not qualify for an additional one-year extension.
EPA has consistently encouraged states to begin working on moderate
area SIP revision requirements ahead of finalization of the
reclassification required by the CAA.
    Even before the 2015 monitoring data was available, the state was
aware that, if a second one-year extension was not appropriate, the
state would have very little time to develop and implement an
acceptable attainment plan. EPA's policy regarding attainment date
extensions and reclassifications of marginal areas \9\ explicitly
cautions: ``When requesting an extension, States should consider the
consequences of eventually not attaining the NAAQS. Although areas can
request two 1-year extensions, those that ultimately fail to attain the
NAAQS will be bumped up to at least a moderate classification . . .
Consequently, areas that are bumped up will be under very tight
timeframes to implement the new SIP requirements, in addition to
achieving the reductions to meet the new attainment date.'' Moreover,
in providing the initial one-year extension to the Sheboygan area, EPA
was clear that ``it would be prudent for the state to begin preparing
for the possibility that the area may not attain by the July 20, 2016,
attainment date.'' (81 FR at 26703) Accordingly, we believe the area
was provided adequate notice that time to develop and submit a moderate
area attainment plan was likely to be short given that the moderate
area attainment year ozone season is the 2017 ozone season for the 2008
ozone NAAQS and that other moderate areas were also required to submit
their plans in January 2017.
---------------------------------------------------------------------------

    \9\ Memorandum Dated February 3, 1994, from D. Kent Berry
entitled ``Procedures for Processing Bump Ups and Extension Requests
for Marginal Ozone Nonattainment Areas.''
---------------------------------------------------------------------------

    Comment 8: A reclassification to moderate would require the fourth
highest ozone value for 2017 to be at or below 0.059 ppm. This would
require ozone values to fall below background levels, and absolutely no
action available to either the State of Wisconsin or EPA could achieve
such a result. EPA is requiring the State of Wisconsin to undergo a
time consuming SIP drafting effort in an extremely limited timeframe
with no possibility of success. This requirement is as impractical as
it is unfair.
    Response 8: As discussed in the response to comment 7, the State of
Wisconsin has been aware of its potential obligation to meet moderate
SIP requirements from the time that the area failed to attain the 2008
ozone standard and the State requested and qualified for a one-year
attainment date extension. Further, EPA disagrees that reclassification
to moderate would require the fourth highest 8-hour daily average ozone
value for 2017 to be at or below 0.059 ppm at the Kohler Andrae
monitor. As discussed more completely in response to comment 1, under
EPA regulations at 40 CFR part 50, appendix P, the 2008 ozone NAAQS is
attained at a monitoring site when the three-year average of the annual
fourth-highest daily maximum eight-hour average ambient air quality
ozone concentration is less than or equal to 0.075 ppm, when truncated
after the third decimal place. The fourth highest 8-hour daily average
ozone value for 2015 is 0.081. Preliminary data indicate that the
fourth highest 8-hour daily average ozone value for 2016 is 0.085.
Thus, providing the preliminary 2016 data remains unchanged upon
certification, a fourth highest 8-hour daily average ozone value of
0.061 ppm for 2017 would result in a design value of 0.075 at the
Kohler Andres monitor, which would be in attainment of the 2008 ozone
standard.
    In addition, even if the design value at the Kohler Andres monitor
is not attaining the 2008 ozone standard with certified 2015-2017
monitoring data, Wisconsin could still request a one-year extension of
the moderate area attainment date for the Sheboygan area. EPA could
grant such an extension provided that the State meets the requirements
of section 181(a)(5) of the CAA. Subsequently, if the area continued to
violate the standard with 2018 data, Wisconsin could request a second
one-year attainment date extension, which EPA could grant if the State
meets the requirements of section 181(a)(5). It should be noted that,
if the

Sheboygan area should fail to qualify for a one-year extension (or an
additional one-year extension) and/or ultimately fails to attain the
2008 ozone standard by its attainment deadline, EPA would be required
to meet its statutory obligation under section 181(b)(2) of the CAA to
determine that the area failed to attain the ozone standard by its
attainment deadline. This would result in the area being reclassified
by operation of law to the next ``highest'' classification, in this
case from moderate to serious.
    Alternately, the State of Wisconsin could decide that additional
time is needed to adopt the emissions control plan, seek emission
controls from upwind states, and implement additional emission
controls. In that case, Wisconsin could request that the Sheboygan area
be reclassified to serious nonattainment at this time. This would
result in establishing a serious area attainment date of July 20, 2021
for the Sheboygan area (rather than the July 20, 2018 moderate
attainment deadline), and require the area to meet the serious level
requirements of section 182(c) of the CAA while giving the state
additional time to develop an ozone attainment plan for the Sheboygan
area.

III. What action is EPA taking?

    EPA is determining that the Sheboygan area failed to attain the
2008 ozone NAAQS by the applicable attainment date of July 20, 2016,
and is not eligible for an additional one-year attainment date
extension. Therefore, upon the effective date of this rule, the
Sheboygan area will be reclassified by operation of law to moderate
nonattainment for the 2008 ozone standard. EPA is requiring Wisconsin
to submit SIP revisions to address moderate area requirements by
January 1, 2017.

IV. Good Cause Exemption Under the Administrative Procedure Act (APA)

    Under APA section 553(d)(3), 5 U.S.C. 553(d)(3), an agency may make
a rule immediately effective ``for good cause found and published with
the rule.'' The EPA believes that there is ``good cause'' to make this
rule effective upon publication in the Federal Register in order to
avoid an impractical outcome and to provide time for the state to meet
the relevant statutory and regulatory deadlines. Specifically, for any
areas classified as moderate nonattainment for the 2008 ozone NAAQS,
the EPA has interpreted CAA section 182, in conjunction with 40 CFR
51.1108(d) and 51.1112(a)(3), to require states to submit their
moderate area SIP revisions and comply with RACT implementation
requirements by January 1, 2017. While EPA acknowledges and addresses
comments related to the compressed timeline associated with this action
elsewhere in this notice, the agency believes that establishing an
effective date of this action simultaneous with the date of publication
will reconcile the competing statutory interests by eliminating a
potentially impractical outcome in which the area might otherwise be
subject to moderate nonattainment area statutory and regulatory
deadlines that would already have passed prior to the normal 30 days
post-publication effective date. EPA made clear in the action providing
the initial extension for this area that absent a second extension, a
state would be under a tight deadline to develop an acceptable
attainment plan. See 81 FR 26703. When 2015 monitoring data became
available earlier this year showing that the Sheboygan area would not
be eligible for a second one-year extension, the state had every reason
to anticipate and prepare for reclassification. In addition, EPA
published its proposed rule for this reclassification on September 28,
2016, and is providing direct notice to the state of this final action
simultaneous with signature of this rule. Accordingly, the EPA finds
that the preparation time actually available to the state and the need
to reconcile the statutory interest in reclassification with the
deadlines for submission of moderate area SIP revisions and compliance
with RACT implementation requirements, constitute good cause under 5
U.S.C. 553(d)(3) to make this final action effective upon publication.

V. Statutory and Executive Order Reviews

    Under section 181(b)(2) of the CAA, a determination of
nonattainment is a factual determination based upon air quality
considerations and the resulting reclassification must occur by
operation of law. A determination of nonattainment and the resulting
reclassification of a nonattainment area by operation of law under
section 181(b)(2) does not in and of itself create any new
requirements, but rather applies the requirements contained in the CAA.
For these reasons, 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 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 rule does not have tribal implications
because it will not have a substantial direct effect 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, this proposed rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor
will it 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 February 17, 2017. 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 81

    Environmental protection, Administrative practice and procedure,
Air pollution control, Designations and classifications,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.

    Dated: December 7, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
    Part 81, title 40, chapter I of the Code of Federal Regulations is
amended as follows:

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

0
2. Section 81.350 is amended by revising the entry for Sheboygan
County, WI in the table entitled ``Wisconsin--2008 8-Hour Ozone NAAQS
(Primary and secondary)'' to read as follows:

Sec.  81.350  Wisconsin.

* * * * *

                                       Wisconsin--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                           Classification
          Designated area          -----------------------------------------------------------------------------
                                       Date \1\              Type             Date \1\              Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Sheboygan County, WI: \2\           ..............  Nonattainment........       1/18/2017  Moderate.
 Sheboygan County.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.

* * * * *
[FR Doc. 2016-30330 Filed 12-16-16; 8:45 am]
BILLING CODE 6560-50-P