E8-15331. Approval and Promulgation of Air Quality Implementation Plans; Illinois and Indiana; Finding of Attainment for 1-Hour Ozone for the Chicago-Gary-Lake County, IL-IN Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

On January 30, 2007, the Illinois Environmental Protection Agency (IEPA) requested that EPA find that the Chicago ozone nonattainment area, located within the Chicago-Gary-Lake County, Illinois-Indiana (IL-IN) area, has attained the revoked 1-hour ozone National Ambient Air Quality Standard (NAAQS). On October 25, 2007, the Indiana Department of Environmental Management (IDEM) requested that EPA find that Lake and Porter Counties, also within the Chicago-Gary-Lake County, IL-IN area, have attained the revoked 1-hour ozone NAAQS. After review of these submissions, EPA is proposing to make such findings.

DATES:

Comments must be received on or before August 6, 2008.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1044, by one of the following methods:

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

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: John Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: John Mooney, Chief, Criteria Pollutant 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-2007-1044. 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 a 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 e-mail. 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 e-mail comment directly to EPA without going through www.regulations.gov, your e-mail 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 http://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 http://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 legal holidays. We recommend that you telephone Gilberto Alvarez, Environmental Scientist, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Gilberto Alvarez, Environmental Scientist, Criteria Pollutant 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 Is the Background for These Actions?

II. What Is the Impact of a December 22, 2006 United States Court of Appeals Decision Regarding EPA's 8-Hour Phase 1 Ozone Implementation Rule on This Proposed Rule?

III. Attainment Finding

IV. What Action Is EPA Taking?

V. Statutory and Executive Order Reviews

I. What Is the Background for These Actions?

Under section 107(d)(1)(C) of the Clean Air Act (CAA), the Chicago-Gary-Lake County, IL-IN area was designated nonattainment for the 1-hour ozone NAAQS by operation of law upon enactment of the 1990 CAA amendments. Under section 181(a) of the CAA, each ozone area designated nonattainment under section 107(d) was also classified by operation of law as “marginal,” “moderate,” “serious,” “severe-15,” “severe-17”, or “extreme,” depending on the severity of the area's air quality problem and the number of years to reach attainment from the 1990 CAA amendments. These nonattainment designations and classifications were codified in title 40 of the Code of Federal Regulations (CFR) part 81 (see 56 FR 56994, November 6, 1991).

The ozone design value for an area, which characterizes the severity of the air quality problem, is represented by the highest ozone design value at any of the individual ozone monitoring sites in the area. Table 1 in section 181(a) of the CAA provides the design value ranges for each nonattainment classification. Ozone nonattainment areas with design values between 0.190 parts per million (ppm) and 0.280 ppm for the three-year period, 1987-1989, were classified as severe-17. Because the Chicago-Gary-Lake County, IL-IN area's 1988 ozone design value fell between 0.190 and 0.280 ppm, this area was classified as severe-17 nonattainment for the 1-hour ozone NAAQS. Under section 182(c) of the CAA, states containing areas that were classified as severe-17 nonattainment were required to submit State Implementation Plans (SIPs) to provide for certain emission controls, to show progress toward attainment, and to provide for attainment of the ozone NAAQS as expeditiously as practicable, but no later than November 15, 2007.

In 1997, EPA adopted a new 8-hour ozone NAAQS. The implementation rule for the standard, referred to as the Phase 1 Implementation Rule, was published on April 30, 2004 (69 FR 23951).

II. What Is the Impact of a December 22, 2006 United States Court of Appeals Decision Regarding EPA's 8-Hour Phase 1 Ozone Implementation Rule on This Proposed Rule?

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (the Court) vacated the Phase 1 Implementation Rule. South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 04-1201, in response to several petitions for rehearing, the Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. With respect to the challenges to the anti-backsliding provisions of the rule, the Court vacated three provisions that would have allowed States to remove from the SIP or to not adopt three 1-hour obligations once the 1-hour ozone NAAQS was revoked to transition to the implementation of the 8-hour ozone NAAQS: (1) Nonattainment area new source review (NSR) requirements based on an area's 1-hour nonattainment classification (a separate NSR policy is being developed); (2) section 185 penalty fees for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour ozone NAAQS by the 1-hour attainment date; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour ozone NAAQS or for failure to attain the 1-hour ozone NAAQS. The Court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

III. Attainment Finding

In 1991, the Chicago-Gary-Lake County, IL-IN area was classified as severe-17 for the 1-hour ozone NAAQS. The Illinois portion of the area consists of the following counties: Cook; Du Page; Grundy (part) [Aux Stable Township and Goose Lake Township]; Kane; Kendall (part) [Oswego Township]; Lake; McHenry; and Will. The Indiana portion of the area consists of Lake and Porter Counties.

An area is considered to have attained the 1-hour ozone NAAQS if there are no violations of the standard, as determined in accordance with the regulation codified at 40 CFR 50.9, based on three consecutive calendar years of complete, quality-assured monitoring data. A violation occurs when the ozone air quality monitoring data show greater than one (1.0) average expected exceedance per year at any site in the area. An exceedance occurs when the maximum hourly ozone concentration during any day exceeds 0.124 ppm. The data should be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Air Quality System so that they are available to the public for review.

The finding of attainment for the Chicago-Gary-Lake County, IL-IN area is based on an analysis of 1-hour ozone air quality data from 2004-2006. Table 1 below summarizes these data.

Table 1.—1-Hour Ozone Expected Exceedances at Monitoring Sites in the Chicago-Gary-Lake County, IL-IN Area Including the Chiwaukee Prairie Monitoring Site

[2004-2006]

Site code	County	Site	Number of 2004 exceedances	Number of 2005 exceedances	Number of 2006 exceedances	3-year avg. exceedances
ILLINOIS
17-031-0001	Cook	Alsip	0.0	1.0	0.0	0.3
17-031-0076	Cook	Chicago-Com Ed	0.0	0.0	0.0	0.0
17-031-0072	Cook	Chicago-Jardine	0.0	0.0	0.0	0.0
17-031-0032	Cook	Chicago-SWFP	0.0	1.0	0.0	0.3
17-031-1003	Cook	Chicago-Taft	0.0	0.0	0.0	0.0
17-031-0064	Cook	Chicago-University	0.0	0.0	0.0	0.0
17-031-4002	Cook	Cicero	0.0	0.0	0.0	0.0
17-031-4007	Cook	Des Plaines	0.0	0.0	0.0	0.0
17-031-7002	Cook	Evanston	0.0	0.0	0.0	0.0
17-031-1601	Cook	Lemont	0.0	0.0	0.0	0.0
17-031-4201	Cook	Northbrook	0.0	0.0	0.0	0.0
17-043-6001	DuPage	Lisle	0.0	0.0	0.0	0.0
17-089-0005	Kane	Elgin	0.0	0.0	0.0	0.0
17-097-1002	Lake	Waukegan	0.0	0.0	0.0	0.0
17-097-1007	Lake	Zion	0.0	0.0	0.0	0.0
17-111-0001	McHenry	Cary	0.0	0.0	0.0	0.0
17-197-1011	Will	Braidwood	0.0	0.0	0.0	0.0
INDIANA
18-089-0022	Lake	Gary	0.0	1.0	0.0	0.3
18-089-2008	Lake	Hammond	0.0	0.0	0.0	0.0
18-089-0030	Lake	Whiting	0.0	0.0	0.0	0.0
18-127-0024	Porter	Ogden Dunes	0.0	1.0	0.0	0.3
18-127-0026	Porter	Valparaiso	0.0	0.0	0.0	0.0
WISCONSIN
55-059-0019	Kenosha	Chiwaukee Prairie	0.0	0.0	0.0	0.0

Based on ambient ozone season (April-October) 1-hour ozone air quality data for the years 2004, 2005 and 2006, EPA proposes to find that the Chicago-Gary-Lake County, IL-IN area attained the 1-hour ozone NAAQS prior to its attainment deadline of November 15, 2007. Note that the analysis of the Chicago-Gary-Lake County, IL-IN area also reflects monitoring data from a monitoring site at the Chiwaukee Prairie site in Wisconsin. Although this particular site is outside of the Chicago-Gary-Lake County, IL-IN area, it is a critical site toward demonstrating air quality impacts for the area because it is a primary design value site for measuring peak ozone levels primarily produced by ozone precursors emitted in the subject area. This site demonstrated that the subject area attained of the 1-hour ozone NAAQS during the 2004-2006 period.

IV. What Action Is EPA Taking?

EPA is proposing to determine that the Chicago-Gary-Lake County, IL-IN area attained the 1-hour ozone NAAQS by its attainment date, November 15, 2007. Under Section 181(b)(2) of the CAA, EPA must determine whether ozone nonattainment areas have attained the ozone NAAQS by their attainment date. This determination must be based on the area's design value as of the attainment date.^[1]

Because the area has attained the 1-hour ozone NAAQS by the applicable attainment date, it is not subject to the requirement to implement contingency measures for failure to attain the standard by its attainment date. Since the area has met its attainment deadline, even if the area subsequently lapses into nonattainment, it would not be required to implement the contingency measures for failure to attain the standard by its attainment date.

If a severe or extreme 1-hour ozone nonattainment area attains by its attainment date, it is not required to implement the section 185 penalty fees program. Section 185(a) of the CAA states that a severe or extreme ozone nonattainment must implement a program to impose fees on certain stationary sources of air pollution if the area “has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date.” Consequently, if such an area has attained the standard as of its applicable attainment date, even if it subsequently lapses into nonattainment, the area would not be required to implement the section 185 penalty fees program. Because EPA is proposing to find that the area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that the area is not subject to the imposition of the section 185 penalty fees.

Please note that Indiana has made a request for a clean data finding.^[2] The action we are proposing today, however, is a determination of attainment, which differs from a clean data finding. A clean data finding results in the suspension of planning requirements for ozone, such as attainment demonstrations and rate-of-progress plans. Indiana has already complied with such requirements for the 1-hour ozone NAAQS in Lake and Porter counties and EPA approved them on July 18, 1997 (62 FR 38457), January 16, 2000 (65 FR 4126), and November 13, 2001 (66 FR 56944). Therefore, EPA is not making a clean data finding in this proposed rule because the 1-hour ozone NAAQS was revoked for this nonattainment area effective June 15, 2005. See 40 CFR 81.315.

V. Statutory and Executive Order Reviews

Under the CAA, 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, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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 rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Ozone

Dated: June 26, 2008.

Bharat Mathur,

Acting Regional Administrator, Region 5.

Footnotes

1.  EPA remains obligated under section 181(b)(2) to determine whether an area attained the 1-hour ozone NAAQS by its attainment date. However, after the revocation of the 1-hour ozone NAAQS, EPA is no longer obligated to reclassify an area to a higher classification for the 1-hour ozone NAAQS based upon a determination that the area failed to attain the 1-hour ozone NAAQS by the area's attainment date for the 1-hour ozone NAAQS. (40 CFR 51.905(e)(2)(i)(B)). Thus, even if we make a finding that an area has failed to attain the 1-hour ozone NAAQS by its attainment date, the area would not be reclassified to a higher classification.

2.  See U.S. EPA Memorandum from John Seitz, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (May 10, 1995).