
[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 91841-91846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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.

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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, (312) 886-1767, 
dagostino.kathleen@epa.gov.

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.
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    \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.
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    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-

[[Page 91842]]

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

[[Page 91843]]

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

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

[[Page 91845]]

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

[[Page 91846]]

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


