2015-20775. Air Plan Approval; IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and Eagan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is making determinations under the Clean Air Act (CAA) that the Chicago, Illinois and Eagan, Minnesota nonattainment areas (hereafter also referred to, respectively, as the “Chicago area,” “Eagan area,” or “areas”) have attained the 2008 lead (Pb) national ambient air quality standard (NAAQS or standard). These determinations of attainment are based upon complete, quality-assured, and certified ambient air monitoring data for the 2012-2014 design period showing that the areas have achieved attainment of the 2008 Pb NAAQS. Additionally, as a result of these determinations, EPA is suspending the requirements for the areas to submit attainment demonstrations, and associated reasonably available control measures (RACM), reasonable further progress (RFP) plans, contingency measures for failure to meet RFP, and attainment deadlines, for as long as the areas continue to attain the 2008 Pb NAAQS. This action does not constitute a redesignation of the areas to attainment of the 2008 Pb NAAQS; the areas remain designated nonattainment until such time as EPA determines that the areas meet the CAA requirements for redesignation to attainment and takes action to redesignate the areas.

DATES:

This direct final rule will be effective October 23, 2015, unless EPA receives adverse comments by September 23, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0408 (Chicago area) or EPA-R05-OAR-2015-0409 (Eagan area), by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: [e-mail].

3. Fax: [phone].

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-2015-0408 (Chicago area) or EPA-R05-OAR-2015-0409 (Eagan area). 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.

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 Eric Svingen, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Eric Svingen, 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], [e-mail].

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 action is EPA taking?

II. What is the background for this action?

III. Application of EPA's Clean Data Policy to the 2008 Pb NAAQS

IV. Do the Chicago and Eagan areas meet the 2008 Pb NAAQS?

V. What is the effect of this action?

VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

EPA is taking final action to determine that the Chicago area and Eagan area have attained the 2008 Pb NAAQS. This is based upon complete, quality-assured, and certified ambient air monitoring data for the 2012-2014 monitoring period showing that the areas have achieved attainment of the 2008 Pb NAAQS.

Further, with these determinations of attainment, the requirements for the areas to submit attainment demonstrations, and associated RACM, RFP plans, and contingency measures for failure to meet RFP and attainment deadlines, are suspended for as long as the area continues to attain the 2008 Pb NAAQS. As discussed below, this action is consistent with EPA's regulations and with its longstanding interpretation of subpart 1 of part D of the CAA.

If either the Chicago area or the Eagan area violates the 2008 Pb NAAQS after this action, the basis for the suspension of these attainment planning requirements would no longer exist for that area, and the area would thereafter have to address applicable requirements.

II. What is the background for this action?

On November 12, 2008 (73 FR 66964), EPA established a 2008 primary and secondary Pb NAAQS at 0.15 micrograms per cubic meter (μg/m³) based on a maximum arithmetic three-month mean concentration for a three-year period. See 40 CFR Section 50.16. This is the “2008 Pb NAAQS.” On November 22, 2010 (75 FR 71033), EPA published its initial air quality designations for the 2008 Pb NAAQS based upon air quality monitoring data for calendar years 2007-2009. The Eagan area was designated nonattainment for the 2008 Pb NAAQS as part of this initial round. On November 22, 2011 (76 FR 72097), EPA published a second and final round of designations for the 2008 Pb NAAQS based upon air quality monitoring data for calendar years 2008-2010. The Chicago area was designated nonattainment for the 2008 Pb NAAQS as part of this second round.

The Illinois Environmental Protection Agency (Illinois EPA) and Minnesota Pollution Control Agency (MPCA) have submitted to EPA complete, quality-assured, and certified monitoring data covering the period from 2012 to 2014. For the reasons set forth in this document, EPA finds that the areas have reached attainment of the 2008 Pb NAAQS for this time period.

III. Application of EPA's Clean Data Policy to the 2008 Pb NAAQS

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, EPA 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 fine particulates (PM_2.5) NAAQS. See Memorandum from Steve 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. For a full discussion on EPA's application of this policy, see section III of the Bristol, Tennessee Determination of Attainment for the 2008 Pb Standards (77 FR 35652, 35653, June 14, 2012).

IV. Do the Chicago and Eagan areas meet the 2008 Pb NAAQS?

A. Criteria

Today's rulemaking assesses whether the Chicago and Eagan areas have attained the 2008 Pb NAAQS, based on the most recent three years of quality-assured data. The Chicago area is comprised of the portions of Cook County that are bounded by Damen Ave. on the west, Roosevelt Rd. on the north, the Dan Ryan Expressway on the east, and the Stevenson Expressway on the south. These boundaries surround the H. Kramer & Co. (H. Kramer) facility, which according to Illinois EPA analysis was found to be the source responsible for elevated lead levels in the Chicago nonattainment area.^[1] The Eagan area is comprised of the portions of Dakota County that are bounded by Lone Oak Rd. (County Rd. 26) to the north, County Rd. 63 to the east, Wescott Rd. to the south, and Lexington Ave. (County Rd. 43) to the west. These boundaries surround the Gopher Resource facility, which according to National Emissions Inventory data was found to account for 66.7% of all lead emissions in Dakota County.^[2]

Under EPA regulations at 40 CFR 50.16, the 2008 primary and secondary Pb standards are met when the maximum arithmetic three-month mean concentration for a three-year period, as determined in accordance with 40 CFR part 50, appendix R, is less than or equal to 0.15 µg/m³ at all relevant monitoring sites in the subject area. EPA refers to this maximum rolling three-month average over a three-year period as the “design value.”

40 CFR part 58, appendix A outlines the quality assurance requirements necessary for providing “sufficient information to assess the quality of the monitoring data.” 40 CFR part 58, appendix D provides network design criteria requirements which describe “specific requirements for the number and location of . . . [monitoring] sites for specific pollutants. . . .” Within this appendix, Section 4.5 states that “[a]t a minimum, there must be one source-oriented SLAMS (State and Local Air Monitoring Station) site located to measure the maximum Pb concentration in ambient air resulting from each non-airport Pb source which emits 0.50 or more tons per year. . . . ”

EPA has reviewed the ambient air monitoring data for the Chicago and Eagan areas in accordance with the provisions of 40 CFR part 50, appendix R, and 40 CFR part 58, appendix A and appendix D. All data considered are complete, quality-assured, certified, and recorded in EPA's Air Quality System (AQS) database. This review addresses air quality data collected in the 2012-2014 period which are the most recent quality-assured data available.

B. Chicago Area Air Quality

The Cook County Department of Environmental Control in conjunction with Illinois EPA operates the 17-031-0110 monitoring site, which is a Federal reference method (FRM) source-oriented SLAMS monitor in the Chicago area. This monitoring site is located at 1241 19th St. in Chicago, Illinois.

In 2013, the United States and the State of Illinois entered into a consent decree with H. Kramer. The consent decree required H. Kramer to, among other things, replace the existing pollution control equipment serving two rotary furnaces at its facility located at 1345 West 21st St. in Chicago with new pollution control technology before September 1, 2013, and to conduct monitoring and stack testing of the new equipment. The consent decree also required H. Kramer to reduce rotary furnace production of two lead alloys until H. Kramer began operation of the new pollution control equipment. H. Kramer has installed and is operating the new pollution control equipment. After the H. Kramer facility implemented the controls required by the consent decree, the Pb values have been well below the standard.

Table 1 shows the 2012-2014 three-month rolling averages for the 17-031-0110 monitoring site, in units of µg/m³.

Location	AQS site ID	3-month period	2012	2013	2014
1241 19th St., Chicago, IL	17-031-0110 #1	Nov-Jan 3	0.03	0.04	0.01
		Dec-Feb	0.02	0.03	0.01
		Jan-Mar	0.02	0.02	0.02
		Feb-Apr	0.02	0.02	0.02
		Mar-May	0.03	0.02	0.02
		Apr-Jun	0.02	0.02	0.02
		May-July	0.02	0.02	0.02
		Jun-Aug	0.03	0.02	0.02
		July-Sept	0.04	0.03	0.02
		Aug-Oct	0.05	0.03	0.02
		Sept-Nov	0.04	0.03	0.04
		Oct-Dec	0.04	0.02	0.03

The data shown in Table 1 are complete, quality-assured, and certified and show 0.05 µg/m^[3] as the highest three-month rolling average.^[4]

With the combination of emissions limits, controls for fugitive emissions, and implementation of additional testing and monitoring requirements, the design value at the monitor is now about a third of the standard.

EPA's review of these data indicates that the Chicago area has attained and continues to attain the 2008 Pb NAAQS, with a design value of 0.05 µg/m³ for the period of 2012-2014.

C. Eagan Area Air Quality

MPCA operates the 27-037-0465 monitoring site, which is a FRM source-oriented SLAMS monitor in the Eagan area. This monitoring site is located at 149 & Yankee Doodle Rd. in Eagan, Minnesota. After the Gopher Resource facility implemented emissions limits, controlled fugitive emissions, and implemented general operating and maintenance requirements, the Pb values have been below the standard.

Table 2 shows the 2012-2014 three-month rolling averages for the 27-037-0465 monitoring site, in units of µg/m³.

Location	AQS site ID	3-month period	2012	2013	2014
149 & Yankee Doodle Rd., Eagan, MN	27-037-0465 #1	Nov-Jan 5	0.07	0.09	0.08
		Dec-Feb	0.09	0.08	0.12
		Jan-Mar	0.10	0.09	0.11
		Feb-Apr	0.09	0.08	0.08
		Mar-May	0.06	0.07	0.04
		Apr-Jun	0.05	0.05	0.03
		May-July	0.08	0.09	0.03
		Jun-Aug	0.09	0.10	0.03
		July-Sept	0.11	0.11	0.04
		Aug-Oct	0.08	0.07	0.06
		Sept-Nov	0.10	0.08	0.08
		Oct-Dec	0.07	0.09	0.06

Table 3 shows the 2012-2014 three-month rolling averages for the co-located 27-037-0465 monitoring site, in units of µg/m³.

Location	AQS site ID	3-month period	2012	2013	2014
149 & Yankee Doodle Rd., Eagan, MN	27-037-0465 #2	Nov-Jan 6	0.07	0.09	0.08
		Dec-Feb	0.08	0.08	0.12
		Jan-Mar	0.10	0.10	0.11
		Feb-Apr	0.07	0.09	0.08
		Mar-May	0.05	0.08	0.04
		Apr-Jun	0.05	0.06	0.03
		May-July	0.10	0.12	0.04
		Jun-Aug	0.11	0.12	0.03
		July-Sept	0.13	0.12	0.05
		Aug-Oct	0.10	0.07	0.07
		Sept-Nov	0.11	0.08	0.08
		Oct-Dec	0.08	0.09	0.06

The data shown in Tables 2 and 3 are complete, quality-assured, and certified and show 0.13 µg/m³ as the highest three-month rolling average.

With the combination of emissions limits, controls for fugitive emissions, and implementation of general operating and maintenance requirements, the design value at the monitor is now about thirteen-fifteenths of the standard.

EPA's review of these data indicates that the Eagan area has attained and continues to attain the 2008 Pb NAAQS, with a design value of 0.13 µg/m³ for the period of 2012-2014.

V. What is the effect of this action?

Based on complete, quality-assured, and certified data for 2012-2014, EPA is determining that the Chicago and Eagan areas have attained the 2008 Pb NAAQS. The requirements for Illinois EPA and MPCA to submit attainment demonstrations, and associated RACM, RFP plans, contingency measures, and any other planning SIPs related to attainment of the 2008 Pb NAAQS for the Chicago and Eagan areas, are suspended for as long as the areas continue to attain the 2008 Pb NAAQS. This rulemaking is consistent and in keeping with EPA's long-held interpretation of CAA requirements, as well as with EPA's regulations for similar determinations for ozone (see 40 CFR Section 51.918) and PM_2.5 (see 40 CFR Section 51.1004(c)).

This action does not constitute a redesignation of the areas to attainment of the 2008 Pb NAAQS under section 107(d)(3) of the CAA. This action does not involve approving maintenance plans for the areas as required under section 175A of the CAA, nor does it find that the areas have met all other requirements for redesignation. The Chicago and Eagan areas remain designated nonattainment for the 2008 Pb NAAQS until such time as EPA determines that the areas meet the CAA requirements for redesignation to attainment and takes action to redesignate the areas.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 23, 2015 without further notice unless we receive relevant adverse written comments by September 23, 2015. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective October 23, 2015.

VI. Statutory and Executive Order Reviews.

This action makes attainment determinations for the Chicago and Eagan areas for the 2008 lead NAAQS based on air quality data and results in the suspension of certain Federal requirements and does not impose any additional requirements. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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, the attainment determinations are not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 23, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Lead
• Reporting and recordkeeping requirements

Dated: August 10, 2015.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

2. Add § 52.746 to subpart O to read as follows:

§ 52.746

Control strategy: Lead (Pb).

(a) Based upon EPA's review of the air quality data for the 3-year period 2012 to 2014, EPA determined that the Chicago, Illinois lead nonattainment area attained the 2008 Lead National Ambient Air Quality Standard (NAAQS). This clean data determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this area continues to meet the 2008 lead NAAQS.

(b) [Reserved]

3. Add § 52.1238 to subpart Y to read as follows:

§ 52.1238

Control strategy: Lead (Pb).

(a) Based upon EPA's review of the air quality data for the 3-year period 2012 to 2014, EPA determined that the Eagan, Minnesota lead nonattainment area attained the 2008 Lead National Ambient Air Quality Standard (NAAQS). This clean data determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this area continues to meet the 2008 lead NAAQS.

(b) [Reserved]

Footnotes

1.  See the technical support document “Region 5 Final Ionia County, Chicago, Illinois Lead Technical Support Document (TSD)” [sic] attached to EPA's air quality designations published November 22, 2011 (76 FR 72097).

2.  See the technical support document “Region 5—Final Eagan, Minnesota Technical Support Document For 1st Round of Lead Designations” attached to EPA's air quality designations published November 22, 2010 (75 FR 71033).

3.  When calculating a three-month rolling average, the first two data points, November through January for 2012 and December through February of 2012, would additionally use data from November and December of 2011.

4.  A co-located monitor with AQS site ID 17-031-0110 #9 has been operating since April 2013. Because this monitor has not produced three complete years of data, EPA is not considering its data in this action. Nevertheless, the co-located monitor has not shown any exceedances of the standard.

5.  The 2012 data set includes data from November and December of 2011.

6.  The 2012 data set includes data from November and December of 2011.