AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is redesignating the Lemont and Pekin sulfur dioxide (SO₂) areas from nonattainment to attainment of the 2010 SO₂ national ambient air quality standard (2010 SO₂ NAAQS). EPA is also approving Illinois' maintenance plan for these areas. Emissions of SO₂ in the two areas have been reduced, and the areas' monitored air quality is currently better than the 2010 SO₂ NAAQS. EPA proposed to approve this action on February 24, 2020 and received two public comment submissions.

DATES:

This final rule is effective on May 26, 2020.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2019-0330. All documents in the docket are listed on the www.regulations.gov website. 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, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or 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 and facility closures due to COVID 19. We recommend that you telephone Mary Portanova, Environmental Engineer, at (312) 353-5954 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR 18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954, portanova.mary@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

I. Background Information

On February 24, 2020 (85 FR 10360), EPA proposed to redesignate the Lemont and Pekin SO₂ nonattainment areas to attainment of the 2010 SO₂ NAAQS. The Lemont area is comprised of Lemont Township in Cook County and Lockport and DuPage Townships in Will County. The Pekin area is comprised of Hollis Township in Peoria County and Cincinnati and Pekin Townships in Tazewell County. An explanation of the Clean Air Act (CAA) requirements, a detailed analysis of Illinois' redesignation requests, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking (NPRM) and will not be restated here.^[1] The public comment period for this NPRM ended on March 25, 2020. EPA received two comments on the proposal.

II. Public Comments

EPA received two public comments on the February 24, 2020 proposal to redesignate the Lemont and Pekin nonattainment areas. The comments are included in the docket for this action. One comment was not germane or relevant to this action and therefore not adverse to this action. The comment lacks the required specificity to the proposed action and the relevant requirements of the CAA. Moreover, the comment does not address a specific regulation or provision relevant to the NPRM or recommend a different action on the State's request from what EPA proposed. The second comment is addressed below.

Comment: The commenter stated that EPA should disapprove these areas' redesignation requests, asserting that the state's maintenance plan lacked any enforceable contingency measures. The commenter described the maintenance plan's contingency measures as an unacceptable “wait and see” approach. The commenter asserted that “EPA's own requirements for contingency measures necessitate that the state already have measures developed and ready to go into effect upon a triggering mechanism.” Moreover, the commenter argued that the maintenance plan does not specify a valid trigger for the contingency measures, and further asserts that violation of the NAAQS cannot itself serve as the trigger for a contingency measure. The commenter also disagreed that Illinois should be permitted to develop a contingency measure once a violation of the NAAQS occurs, rather than implementing a fully developed preset measure. The commenter concluded that EPA must send this maintenance plan back to the state and require an actual enforceable measure, fully developed and ready to be enforced and implemented, that would be held in reserve in case the areas violate a discrete, set contingency level based on measured air quality in the areas.

Response: CAA section 175A(d) requires that each maintenance plan submitted “shall contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area” (emphasis added). By this language Congress provided EPA the discretion to determine what contingency measures are necessary to promptly correct any violation of the NAAQS after an area is redesignated to attainment. EPA set forth the procedures for reviewing redesignation requests, including maintenance plan provisions, in the September 4, 1992 memorandum from the EPA Director of the Air Quality Management Division, John Calcagni, entitled Procedures for Processing Requests to Redesignate Areas to Attainment (the “Calcagni Memorandum”). The Calcagni Memorandum set forth several provisions for states to consider in developing contingency measures, including the following: “For the purposes of [CAA] section 175A, a State is not required to have fully adopted contingency measures that will take effect without further action by the State in order for the maintenance plan to be approved. However, the contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are adopted expediently once they are triggered.” Calcagni Memorandum at 12.

In its April 23, 2014 Guidance for 1-Hour SO₂ Nonattainment Area SIP Submissions (the “2014 SO₂ Guidance”), EPA provided additional guidance, specific to SO₂ nonattainment areas, for states to develop maintenance plans to meet the requirements of CAA section 175A(d). In addition to affirming the requirements set forth in CAA section 175A(d) and the guidance in the Calcagni Memorandum, the 2014 SO₂ Guidance suggested that previous EPA guidance applicable to contingency measures for nonattainment plans under CAA section 172(c)(9) may also apply to CAA section 175A(d): For instance, where attainment revolves around compliance with a small set of sources with emission limits shown to provide for attainment, the EPA interprets “contingency measures” to mean that the state agency has a comprehensive program to identify sources of violations of the SO₂ NAAQS and to undertake an aggressive follow-up for compliance and enforcement. See 57 FR 13498, 13547 (Apr. 16, 1992).

With this background in mind, we turn to the commenter's specific criticisms of the proposed rulemaking. The commenter claims that Illinois' maintenance plan has no enforceable contingency measures and is a “wait and see approach,” declaring that “EPA's own requirements for contingency measures necessitate that the state already have measures developed and ready to go into effect upon a triggering mechanism.” That Illinois' plan may look like a “wait-and-see” approach is expected to some extent for any contingency plan, as contingency measures under the CAA are not intended to come into effect until an area encounters difficulty maintaining the NAAQS. Illinois must keep track of SO₂ monitor data and emissions in the Lemont and Pekin areas in order to determine when to activate its contingency plan. The contingency plan and commitments in the maintenance plan are enforceable as part of the Illinois SIP. However, as the Calcagni Memorandum makes clear, there is no requirement under CAA section 175A for Illinois to fully adopt specific additional controls or limitations as contingency measures that will take effect without further action by Illinois before EPA may approve the maintenance plan. A requirement for a SIP to include specific contingency measures that can take effect without further action by the state appears in section 172(c)(9) of the CAA, pertaining specifically to the required elements for nonattainment plans intended to bring a nonattainment area into attainment of an air quality standard. The 2014 SO₂ Guidance explains on page 41 that SO₂ presents special considerations and cites EPA's February 1994 “SO₂ Guideline Document” regarding these considerations. The guidance indicates that pre-planned contingency measures may be useful for augmenting certain criteria pollutant strategies which involve controlling pollutant precursors from widespread small sources that can have uncertain control efficiencies and complex atmospheric interactions with other precursor emissions, but as there is much less uncertainty in the effectiveness of control strategies for directly-emitted pollutants such as SO₂, such prescriptive additional measures are typically not necessary to reach attainment. Because SO₂ implementation plans contain emission limits that are directly and quantifiably shown through air dispersion modeling to be necessary and sufficient to attain the SO₂ NAAQS, it would be unlikely for an area to implement its plan and yet fail to attain the NAAQS. Therefore, the 2014 SO₂ Guidance states that for SO₂ programs, contingency measures can mean that the air agency has a comprehensive program to enforce emission limits and to identify and address sources of violations of the SO₂ NAAQS, and that EPA believes that this approach continues to be valid for the 2010 SO₂ NAAQS. The 2014 SO₂ Guidance, as noted above, expects the implementation and enforcement of the area's nonattainment plan emission controls and limits to address this CAA requirement for SO₂ areas. The contingency measures pursuant to CAA section 172(c)(9) for the Lemont and Pekin areas were addressed at 82 FR 46434, October 5, 2017. Now that Illinois has requested redesignation to attainment for the Lemont and Pekin areas, the requirements of CAA section 175A apply. As mentioned above, CAA section 175A does not require states to provide a set of fully adopted additional control measures as contingency measures in a redesignated area's maintenance plan.

The commenter also suggests that the Lemont and Pekin areas' contingency plan has either no triggering event or mechanism, or that the only triggering event is a violation of the 2010 SO₂ NAAQS, and it is incorrect for the trigger to be a violation. The commenter is correct that a maintenance plan must identify “specific indicators, or triggers, which will be used to determine when the contingency measures need to be implemented.” See Calcagni Memorandum at 12. There is no requirement that the triggering event for a contingency measure be set below the level of the NAAQS; the CAA states that contingency measures are intended to address violations that occur. States often include earlier triggers as a practical matter to assist in maintaining the NAAQS, and Illinois has in fact done so. Two of Illinois' triggering events are mentioned in the NPRM: Illinois will activate its contingency plan if the 99th percentile of maximum daily one-hour average SO₂ concentrations for any year exceeds 75 ppb, or if total SO₂ emissions increase more than five percent above the attainment year inventory. Neither case represents a violation of the 2010 SO₂ NAAQS, and both cases would be expected to allow Illinois adequate lead time to prepare and implement appropriate actions to avoid progressing to a violation of the 2010 SO₂ NAAQS. In the event of a violation, Illinois' planned action commitments follow a tighter schedule than the commitments triggered by the non-violating scenarios.

Illinois' contingency plan contains two action levels. Level I is intended to prevent violations from occurring. Level II is used when a violation does occur, and it provides for a faster response. A Level I response is triggered when the 99th percentile of maximum daily one-hour average SO₂ concentrations exceeds 75 ppb in any year at any monitor in the Lemont or Pekin areas, or if total SO₂ emissions in the Lemont or Pekin maintenance areas increase more than five percent above the levels contained in the area's attainment year emission inventory. (Facilities in Illinois are required to report their actual emissions annually, under 35 Illinois Administrative Code 254.) Illinois will conduct a study to evaluate air quality and emission trends and determine the level of emission reductions needed and where such controls may be required. Illinois commits to implement such controls as expeditiously as practicable, formally adopting measures within 18 months of selection. A Level II response is triggered when a violation of the 2010 SO₂ NAAQS is measured at any monitor in the Lemont or Pekin maintenance areas. A violation occurs when the three-year average of annual 99th percentile daily maximum 1-hour values is greater than 75 ppb, in accordance with 40 CFR part 50, appendix T. Illinois commits to analyzing the cause of the violation and identifying effective measures to address it, on a tighter schedule than in Level I. Control measures will be adopted and implemented within 18 months of the certification of monitoring data indicating violation of the 2010 SO₂ NAAQS. Illinois' choice to use the occurrence of actual violations of the 2010 SO₂ NAAQS as a contingency triggering event does not indicate that Illinois contemplates delaying reasonable action for three years, or waiting to act until air quality is unhealthy, but instead anticipates a situation in which a sudden serious malfunction or drastic failure of compliance causes an impact large enough to mathematically raise the three-year design value over 75 ppb, constituting a violation, without warning.

Finally, as to the commenter's assertion that EPA should not allow Illinois to determine what measures will be implemented should a violation occur, and should instead require predetermined measures, EPA has explained above that predetermined contingency measures are not required or necessary for SO₂ maintenance plans. EPA expects that, if needed, appropriate additional pollution control actions must be chosen based on the circumstances, i.e., the specific source culpability, that led to the contingency plan being triggered. Selecting and implementing emission controls sufficient to re-attain the NAAQS is a typical function of the state. Illinois has the authority and resources to investigate increased ambient concentrations or source emissions, determine the cause, and develop new or revised source-specific control measures or emission limits to address the situation. As stated above, the contingency plan for the Lemont and Pekin areas is federally enforceable once approved into the SIP, so EPA can assure that Illinois will take prompt action as necessary per its commitment.

As shown by the Calcagni Memorandum and the 2014 SO₂ Guidance, EPA's longstanding interpretation of the CAA contingency measure requirements for SO₂ is that neither a state's SO₂ nonattainment plan nor its maintenance plan must include a set of fully adopted SO₂ control measures separate from, and in addition to, the SO₂ control measures and emission limits that have been adopted into the state's nonattainment SIP and are demonstrated to provide for attainment of the SO₂ NAAQS. In addition, triggers for contingency plans may include monitored NAAQS violations. EPA believes that Illinois' contingency plan for the Lemont and Pekin areas meets EPA's guidance for redesignating SO₂ nonattainment areas. EPA does not agree with the commenter that the Lemont and Pekin maintenance plan should be returned to the State or that the redesignations of the Lemont and Pekin areas should be disapproved. Therefore, EPA is finalizing the February 24, 2020 action as proposed.

III. Final Action

EPA is redesignating the Lemont and Pekin areas to attainment of the 2010 SO₂ NAAQS. EPA is also approving Illinois' maintenance plan, which is designed to ensure that the Lemont and Pekin areas will continue to maintain the 2010 SO₂ NAAQS.

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 areas from certain CAA requirements that would otherwise apply to them. 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. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves the State of planning requirements for these SO₂ nonattainment areas. 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.

IV. Statutory and Executive Order Reviews

Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of the geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application 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, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because this action is not a significant regulatory action under Executive Order 12866;
• 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 SIP is 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation 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 the NAAQS 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. 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 July 27, 2020. 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 CAA section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

40 CFR parts 52 and 81 are 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. In § 52.720, the table in paragraph (e) is amended under “Attainment and Maintenance Plans” by adding an entry for “Sulfur dioxide (2010) maintenance plan” after the entry “Sulfur dioxide maintenance plan” to read as follows:

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

4. Section 81.314 is amended in the table entitled “Illinois—2010 Sulfur Dioxide NAAQS [Primary]” by revising the entries “Lemont, IL” and “Pekin, IL” and adding the entry “Rest of State” at the end of the table to read as follows:

Footnotes