Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of Kewaunee County Area to Attainment for Ozone, 70255-70266 [E7-23949]
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Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules
predominance. For example, the
provision allows for the declaration
‘‘fish protein (contains one or more of
the following: Pollock, cod, and/or
pacific whiting).’’ Given the concerns
that industry has expressed with respect
to impracticability of the agency’s
proposed labeling requirement (see
section III.A of this document), we seek
comment on the need for and
appropriateness of a similar provision
for the labeling of fluid UF milk that is
used interchangeably with milk, as
needed and when economically and
logistically practical, in the manufacture
of standardized cheeses and related
cheese products.
The agency seeks public comment on
whether the labeling requirement that
the agency proposed would be
misleading or deceptive to consumers.
Specifically, the agency seeks comment
on the following questions:
1. Considering that the products of
ultrafiltration, as defined in proposed
§ 133.3(f) and (g) in the 2005 proposed
rule, are significantly different in
composition from milk and nonfat milk,
is it or is it not appropriate to require
that they must be identified by a
common or usual name other than
‘‘milk’’ and ‘‘nonfat milk,’’ respectively?
2. If it is appropriate to permit fluid
UF milk and fluid UF nonfat milk to be
declared by the collective terms ‘‘milk’’
and ‘‘nonfat milk,’’ respectively, when
used in standardized cheeses and
related cheese products, what is the
scientific and legal justification?
3. Is there a need to consider the
declaration of fluid UF milk and fluid
UF nonfat milk by a term(s) other than
their specific, individual common, or
usual names when they are used as
ingredients in standardized cheeses and
related cheese products? Should this
consideration be extended to fluid UF
milk and fluid UF nonfat milk when
they are used as ingredients in other
foods? If they are required to be
declared by different terms when used
in standardized cheeses as compared to
other foods, what would be the
scientific and legal basis for the
different labeling requirements?
4. Is there a need for the agency to
consider providing for ‘‘and/or’’ labeling
(similar to such provisions in § 101.4(b))
when fluid UF milk or fluid UF nonfat
milk are used as ingredients in
standardized cheeses and related cheese
products? What is the scientific and
legal justification for such a provision?
IV. Comments
Interested persons may submit to the
Division of Dockets Management (see
ADDRESSES) written or electronic
comments regarding this document.
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Submit a single copy of electronic
comments or two paper copies of any
mailed comments, except that
individuals may submit one paper copy.
Comments are to be identified with the
docket number found in brackets in the
heading of this document. Received
comments may be seen in the Division
of Dockets Management between 9 a.m.
and 4 p.m., Monday through Friday.
Please note that in January 2008, the
FDA Web site is expected to transition
to the Federal Dockets Management
System (FDMS). FDMS is a
Government-wide, electronic docket
management system. After the transition
date, electronic submissions will be
accepted by FDA through the FDMS
only. When the exact date of the
transition to FDMS is known, FDA will
publish a Federal Register notice
announcing that date.
V. References
The following references have been
placed on display in the Division of
Dockets Management (see ADDRESSES)
and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday. (FDA has verified the
Web site address, but FDA is not
responsible for any subsequent changes
to the Web site after this document
publishes in the Federal Register.)
1. Johnson, M.E. and J.A. Lucey, ‘‘Major
Technological Advances and Trends in
Cheese,’’ Journal of Dairy Science, 89:1174–
1178, 2006.
2. Dudlicek, J., ‘‘Cutting Edge: Innovative
Processes Keep Dairy Manufacturing
Moving,’’ in the February 2006 ed. of Dairy
Field (https://www.dairyfield.com/
content.php?s=DF/2006/02&p=10), accessed
July 2, 2007.
3. Tamime, A.Y. and B.A. Law (Eds.),
Mechanisation and Automation in Dairy
Technology, pp. 1–29 and 204–295, Sheffield
Academic Press Ltd., Sheffield, England,
2001.
4. Derby, B.M., Memorandum to Nalubola,
R., Consumer Research on Ultrafiltered Milk
Labeling, February 10, 2006.
5. Derby, B.M., Memorandum to Nalubola,
R., Kraft Consumer Research on Ultrafiltered
Milk Labeling, August 16, 2006.
Dated: December 3, 2007.
Leslye M. Fraser,
Director, Office of Regulations and Policy,
Center for Food Safety and Applied Nutrition.
[FR Doc. E7–23981 Filed 12–10–07; 8:45 am]
BILLING CODE 4160–01–S
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70255
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2007–0957; FRL–8504–1]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; Wisconsin; Redesignation
of Kewaunee County Area to
Attainment for Ozone
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to make a
determination under the Clean Air Act
(CAA) that the nonattainment area of
Kewaunee County has attained the 8hour ozone National Ambient Air
Quality Standard (NAAQS). This
determination is based on qualityassured ambient air quality monitoring
data for the 2004–2006 ozone seasons
that demonstrate that the 8-hour ozone
NAAQS has been attained in the area.
Preliminary monitoring data for 2007
continue to show monitored attainment
of the NAAQS.
EPA is proposing to approve a request
from the State of Wisconsin to
redesignate the Kewaunee County area
to attainment of the 8-hour ozone
NAAQS. The Wisconsin Department of
Natural Resources (WDNR) submitted
this request on June 12, 2007. In
proposing to approve this request EPA
is also proposing to approve, as a
revision to the Wisconsin State
Implementation Plan (SIP), the State’s
plan for maintaining the 8-hour ozone
NAAQS through 2018 in the area. EPA
also finds adequate and is proposing to
approve the State’s 2012 and 2018
Motor Vehicle Emission Budgets
(MVEBs) for the Kewaunee County area.
DATES: Comments must be received on
or before January 10, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2007–0957, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 886–5824.
4. Mail: John M. 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 M. Mooney,
Chief, Criteria Pollutant Section, Air
Programs Branch (AR–18J), U.S.
Environmental Protection Agency, 77
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West Jackson Boulevard, 18th floor,
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–
0957. 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 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 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. For additional instructions
on submitting comments, go to Section
I of the SUPPLEMENTARY INFORMATION
section of this document.
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
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8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. We
recommend that you telephone
Kathleen D’Agostino, Environmental
Engineer, at (312) 886–1767 before
visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Kathleen D’Agostino, Environmental
Engineer, Criteria Pollutant 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. This supplementary information
section is arranged as follows:
Table of Contents
I. What Should I Consider as I Prepare My
Comments for EPA?
II. What Action Is EPA Proposing To Take?
III. What Is the Background for These
Actions?
A. What Is the General Background
Information?
B. What Is the Impact of the December 22,
2006 United States Court of Appeals
Decision Regarding EPA’s Phase 1
Implementation Rule?
IV. What Are the Criteria for Redesignation?
V. Why Is EPA Proposing To Take These
Actions?
VI. What Is the Effect of These Actions?
VII. What is EPA’s Analysis of the Request?
A. Attainment Determination and
Redesignation
B. Adequacy of Wisconsin’s MVEBs
VIII. What Action Is EPA Taking?
IX. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare
My Comments for EPA?
When submitting comments,
remember to:
1. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
2. Follow directions—The EPA may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
3. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
4. Describe any assumptions and
provide any technical information and/
or data that you used.
5. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
6. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
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7. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
8. Make sure to submit your
comments by the comment period
deadline identified.
II. What Action Is EPA Proposing To
Take?
EPA is proposing to take several
related actions. EPA is proposing to
make a determination that the
Kewaunee County nonattainment area
has attained the 8-hour ozone standard
and that this area has met the
requirements for redesignation under
section 107(d)(3)(E) of the CAA. EPA is
thus proposing to approve Wisconsin’s
request to change the legal designation
of the Kewaunee County area from
nonattainment to attainment for the 8hour ozone NAAQS. EPA is also
proposing to approve Wisconsin’s
maintenance plan SIP revision for
Kewaunee County (such approval being
one of the CAA criteria for redesignation
to attainment status). The maintenance
plan is designed to keep the Kewaunee
County area in attainment of the ozone
NAAQS through 2018. Additionally,
EPA is proposing to approve the newlyestablished 2012 and 2018 MVEBs for
the Kewaunee County area. The
adequacy comment period for the
MVEBs began on September 24, 2007,
with EPA’s posting of the availability of
the submittal on EPA’s Adequacy Web
site (at https://www.epa.gov/otaq/
stateresources/transconf/
adequacy.htm). The adequacy comment
period for these MVEBs ended on
October 24, 2007. EPA did not receive
any requests for this submittal, or
adverse comments on this submittal
during the adequacy comment period.
In a letter dated November 6, 2007, EPA
informed WDNR that we had found the
2012 and 2018 MVEBs to be adequate
for use in transportation conformity
analyses. Please see the Adequacy
section of this rulemaking for further
explanation on this process. Therefore,
we find adequate, and are proposing to
approve, the State’s 2012 and 2018
MVEBs for transportation conformity
purposes.
III. What Is the Background for These
Actions?
A. What Is the General Background
Information?
Ground-level ozone is not emitted
directly by sources. Rather, emissions of
nitrogen oxides (NOX) and volatile
organic compounds (VOCs) react in the
presence of sunlight to form groundlevel ozone. NOX and VOCs are referred
to as precursors of ozone.
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The CAA establishes a process for air
quality management through the
NAAQS. Before promulgation of the
current 8-hour standard, the ozone
NAAQS was based on a 1-hour
standard. On November 6, 1991 (56 FR
56693 and 56852), the Kewaunee
County area was designated as a
moderate nonattainment area under the
1-hour ozone NAAQS. The area was
subsequently redesignated to attainment
of the 1-hour standard on August 26,
1996 (61 FR 43668). At the time EPA
revoked the 1-hour ozone NAAQS, on
June 15, 2005, the Kewaunee County
area was designated as attainment under
the 1-hour ozone NAAQS.
On July 18, 1997, EPA promulgated a
revised 8-hour ozone standard of 0.08
parts per million (ppm). This new
standard is more stringent than the
previous 1-hour standard. On April 30,
2004 (69 FR 23857), EPA published a
final rule designating and classifying
areas under the 8-hour ozone NAAQS.
These designations and classifications
became effective June 15, 2004. The
CAA required EPA to designate as
nonattainment any area that was
violating the 8-hour ozone NAAQS
based on the three most recent years of
air quality data, 2001–2003.
The CAA contains two sets of
provisions, subpart 1 and subpart 2, that
address planning and control
requirements for nonattainment areas.
(Both are found in Title I, part D, 42
U.S.C. 7501–7509a and 7511–7511f,
respectively.) Subpart 1 contains general
requirements for nonattainment areas
for any pollutant, including ozone,
governed by a NAAQS. Subpart 2
provides more specific requirements for
ozone nonattainment areas.
Under EPA’s 8-hour ozone
implementation rule, (69 FR 23951
(April 30, 2004)), an area was classified
under subpart 2 based on its 8-hour
ozone design value (i.e. the 3-year
average annual fourth-highest daily
maximum 8-hour average ozone
concentration), if it had a 1-hour design
value at the time of designation at or
above 0.121 ppm (the lowest 1-hour
design value in Table 1 of subpart 2) (69
FR 23954). All other areas were covered
under subpart 1, based upon their
8-hour design values (69 FR 23958). The
Kewaunee County area was designated
as a subpart 1, 8-hour ozone
nonattainment area by EPA on April 30,
2004 (69 FR 23857, 23947) based on air
quality monitoring data from 2001–2003
(69 FR 23860).
40 CFR 50.10 and 40 CFR part 50,
Appendix I provide that the 8-hour
ozone standard is attained when the
3-year average of the annual fourthhighest daily maximum 8-hour average
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ozone concentration is less than or
equal to 0.08 ppm, when rounded. The
data completeness requirement is met
when the average percent of days with
valid ambient monitoring data is greater
than 90%, and no single year has less
than 75% data completeness. See 40
CFR Part 50, Appendix I, 2.3(d).
On June 12, 2007, Wisconsin
requested that EPA redesignate the
Kewaunee County area to attainment for
the 8-hour ozone standard. The
redesignation request included three
years of complete, quality-assured data
for the period of 2004 through 2006,
indicating the 8-hour NAAQS for ozone
had been attained for the Kewaunee
County area. Under the CAA,
nonattainment areas may be
redesignated to attainment if sufficient
complete, quality-assured data are
available for the Administrator to
determine that the area has attained the
standard, and the area meets the other
CAA redesignation requirements in
section 107(d)(3)(E).
B. What Is the Impact of the December
22, 2006 United States Court of Appeals
Decision Regarding EPA’s Phase 1
Implementation Rule?
1. Summary of Court Decision
On December 22, 2006, the U.S. Court
of Appeals for the District of Columbia
Circuit vacated EPA’s Phase 1
Implementation Rule for the 8-hour
Ozone Standard. (69 FR 23951, April 30,
2004). South Coast Air Quality
Management Dist. v. EPA, 472 F.3d 882
(D.C. 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 DC Circuit clarified that
the Phase 1 Rule was vacated only with
regard to those parts of the rule that had
been successfully challenged. Therefore,
the Phase 1 Rule provisions related to
classifications for areas currently
classified under subpart 2 of Title I, part
D, of the Act as 8-hour nonattainment
areas, the 8 hour attainment dates and
the timing for emissions reductions
needed for attainment of the 8 hour
ozone NAAQS remain effective. The
June 8 decision left intact the Court’s
rejection of EPA’s reasons for
implementing the 8-hour standard in
certain nonattainment areas under
subpart 1 in lieu of subpart 2. By
limiting the vacatur, the Court let stand
EPA’s revocation of the 1-hour standard
and those anti-backsliding provisions of
the Phase 1 Rule that had not been
successfully challenged. The June 8
decision reaffirmed the December 22,
2006 decision that EPA had improperly
failed to retain four measures required
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70257
for 1-hour nonattainment areas under
the anti-backsliding provisions of the
regulations: (1) Nonattainment area New
Source Review (NSR) requirements
based on an area’s 1-hour nonattainment
classification; (2) Section 185 penalty
fees for 1-hour severe or extreme
nonattainment areas; (3) measures to be
implemented pursuant to section
172(c)(9) or 182(c)(9) of the Act, on the
contingency of an area not making
reasonable further progress toward
attainment of the 1-hour NAAQS, or for
failure to attain that NAAQS; and (4)
certain transportation conformity
requirements for certain types of federal
actions. The June 8 decision clarified
that the Court’s reference to conformity
requirements was limited to requiring
the continued use of 1-hour motor
vehicle emissions budgets until 8-hour
budgets were available for 8-hour
conformity determinations.
This section sets forth EPA’s views on
the potential effect of the Court’s rulings
on this proposed redesignation action.
For the reasons set forth below, EPA
does not believe that the Court’s rulings
alter any requirements relevant to this
redesignation action so as to preclude
redesignation or prevent EPA from
proposing or ultimately finalizing this
redesignation. EPA believes that the
Court’s December 22, 2006 and June 8,
2007 decisions impose no impediment
to moving forward with redesignation of
this area to attainment, because even in
light of the Court’s decisions,
redesignation is appropriate under the
relevant redesignation provisions of the
CAA and longstanding policies
regarding redesignation requests.
2. Requirements Under the 8-Hour
Standard
With respect to the 8-hour standard,
the Court’s ruling rejected EPA’s reasons
for classifying areas under subpart 1 for
the 8-hour standard, and remanded that
matter to the Agency. Consequently, it
is possible that this area could, during
a remand to EPA, be reclassified under
subpart 2. Although any future decision
by EPA to classify this area under
subpart 2 might trigger additional future
requirements for the area, EPA believes
that this does not mean that
redesignation cannot now go forward.
This belief is based upon: (1) EPA’s
longstanding policy of evaluating
requirements in accordance with the
requirements due at the time the request
is submitted; and, (2) consideration of
the inequity of applying retroactively
any requirements that might in the
future be applied.
First, at the time the redesignation
request was submitted, the Kewaunee
County area was classified under
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subpart 1 and was obligated to meet
only subpart 1 requirements. Under
EPA’s longstanding interpretation of
section 107(d)(3)(E) of the CAA, to
qualify for redesignation, states
requesting redesignation to attainment
must meet only the relevant SIP
requirements that came due prior to the
submittal of a complete redesignation
request. September 4, 1992, Calcagni
memorandum (‘‘Procedures for
Processing Requests to Redesignate
Areas to Attainment,’’ Memorandum
from John Calcagni, Director, Air
Quality Management Division). See also
Michael Shapiro Memorandum,
September 17, 1993, and 60 FR 12459,
12465–66 (March 7, 1995)
(Redesignation of Detroit-Ann Arbor).
See Sierra Club v. EPA, 375 F.3d 537
(7th Cir. 2004), which upheld this
interpretation. See, e.g. also 68 FR
25418, 25424, 25427 (May 12, 2003)
(redesignation of St. Louis).
Moreover, it would be inequitable to
retroactively apply any new SIP
requirements that were not applicable at
the time the request was submitted. The
DC Circuit has recognized the inequity
in such retroactive rulemaking. In Sierra
Club v. Whitman, 285 F. 3d 63 (DC Cir.
2002), the DC Circuit upheld a District
Court’s ruling refusing to make
retroactive an EPA determination of
nonattainment that was past the
statutory due date. Such a
determination would have resulted in
the imposition of additional
requirements on the area. The Court
stated: ‘‘Although EPA failed to make
the nonattainment determination within
the statutory time frame, Sierra Club’s
proposed solution only makes the
situation worse. Retroactive relief would
likely impose large costs on the States,
which would face fines and suits for not
implementing air pollution prevention
plans in 1997, even though they were
not on notice at the time.’’ Id. at 68.
Similarly here it would be unfair to
penalize the area by applying to it for
purposes of redesignation additional SIP
requirements under subpart 2 that were
not in effect at the time it submitted its
redesignation request.
3. Requirements Under the 1-Hour
Standard
With respect to the 1-hour standard
requirements, the Kewaunee County
area was an attainment area subject to
a CAA section 175A maintenance plan
under the 1-hour standard. The DC
Circuit’s decisions do not impact
redesignation requests for these types of
areas, except to the extent that the Court
in its June 8 decision clarified that for
those areas with 1-hour motor vehicle
emissions budgets in their maintenance
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plans, anti-backsliding requires that
those 1-hour budgets must be used for
8-hour conformity determinations until
replaced by 8-hour budgets. To meet
this requirement, conformity
determinations in such areas must
comply with the applicable requrements
of EPA’s conformity regulations at 40
CFR Part 93.
With respect to the three other antibacksliding provisions for the 1-hour
standard that the Court found were not
properly retained, the Kewaunee County
area is an attainment area subject to a
maintenance plan for the 1-hour
standard, and the NSR, contingency
measure (pursuant to section 172(c)(9)
or 182(c)(9)) and fee provision
requirements no longer apply to an area
that has been redesignated to attainment
of the 1-hour standard.
Thus, the decision in South Coast Air
Quality Management Dist. should not
alter requirements that would preclude
EPA from finalizing the redesignation of
this area.
IV. What Are the Criteria for
Redesignation?
The CAA provides the requirements
for redesignating a nonattainment area
to attainment. Specifically, section
107(d)(3)(E) allows for redesignation
provided that: (1) The Administrator
determines that the area has attained the
applicable NAAQS; (2) the
Administrator has fully approved the
applicable implementation plan for the
area under section 110(k); (3) the
Administrator determines that the
improvement in air quality is due to
permanent and enforceable reductions
in emissions resulting from
implementation of the applicable SIP
and applicable federal air pollutant
control regulations and other permanent
and enforceable reductions; (4) the
Administrator has fully approved a
maintenance plan for the area as
meeting the requirements of section
175A; and, (5) the state containing such
area has met all requirements applicable
to the area under section 110 and part
D.
EPA provided guidance on
redesignation in the General Preamble
for the Implementation of Title I of the
CAA Amendments of 1990, on April 16,
1992 (57 FR 13498), and supplemented
this guidance on April 28, 1992 (57 FR
18070). EPA has provided further
guidance on processing redesignation
requests in the following documents:
‘‘Ozone and Carbon Monoxide Design
Value Calculations,’’ Memorandum
from William G. Laxton, Director
Technical Support Division, June 18,
1990;
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‘‘Maintenance Plans for Redesignation
of Ozone and Carbon Monoxide
Nonattainment Areas,’’ Memorandum
from G. T. Helms, Chief, Ozone/
Carbon Monoxide Programs Branch,
April 30, 1992;
‘‘Contingency Measures for Ozone and
Carbon Monoxide (CO)
Redesignations,’’ Memorandum from
G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1,
1992;
‘‘Procedures for Processing Requests to
Redesignate Areas to Attainment,’’
Memorandum from John Calcagni,
Director, Air Quality Management
Division, September 4, 1992;
‘‘State Implementation Plan (SIP)
Actions Submitted in Response to
Clean Air Act (ACT) Deadlines,’’
Memorandum from John Calcagni,
Director, Air Quality Management
Division, October 28, 1992;
‘‘Technical Support Documents (TSD’s)
for Redesignation Ozone and Carbon
Monoxide (CO) Nonattainment
Areas,’’ Memorandum from G. T.
Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, August
17, 1993;
‘‘State Implementation Plan (SIP)
Requirements for Areas Submitting
Requests for Redesignation to
Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) On or
After November 15, 1992,’’
Memorandum from Michael H.
Shapiro, Acting Assistant
Administrator for Air and Radiation,
September 17, 1993;
‘‘Use of Actual Emissions in
Maintenance Demonstrations for
Ozone and CO Nonattainment Areas,’’
Memorandum from D. Kent Berry,
Acting Director, Air Quality
Management Division, to Air Division
Directors, Regions 1–10, dated
November 30, 1993.
‘‘Part D New Source Review (part D
NSR) Requirements for Areas
Requesting Redesignation to
Attainment,’’ Memorandum from
Mary D. Nichols, Assistant
Administrator for Air and Radiation,
October 14, 1994; and
‘‘Reasonable Further Progress,
Attainment Demonstration, and
Related Requirements for Ozone
Nonattainment Areas Meeting the
Ozone National Ambient Air Quality
Standard,’’ Memorandum from John
S. Seitz, Director, Office of Air
Quality Planning and Standards, May
10, 1995.
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V. Why Is EPA Proposing To Take
These Actions?
VII. What Is EPA’s Analysis of the
Request?
On June 12, 2007, Wisconsin
requested redesignation of the
Kewaunee County area to attainment for
the 8-hour ozone standard. EPA believes
that the area has attained the standard
and has met the requirements for
redesignation set forth in section
107(d)(3)(E) of the CAA.
A. Attainment Determination and
Redesignation
VI. What Is the Effect of These Actions?
Approval of the redesignation request
would change the official designation of
the area for the 8-hour ozone NAAQS
found at 40 CFR part 81. It would also
incorporate into the Wisconsin SIP a
plan for maintaining the 8-hour ozone
NAAQS through 2018. The maintenance
plan includes contingency measures to
remedy future violations of the 8-hour
NAAQS. It also establishes MVEBs of
0.43 and 0.32 tons per day (tpd) VOC
and 0.80 and 0.47 tpd NOX for the years
2012 and 2018, respectively.
EPA is proposing to make a
determination that the Kewaunee
County area has attained the 8-hour
ozone standard and that the area has
met all other applicable section
107(d)(3)(E) redesignation criteria. The
basis for EPA’s determination is as
follows:
1. The Area Has Attained the 8-Hour
Ozone NAAQS (Section 107(d)(3)(E)(i))
EPA is proposing to make a
determination that the Kewaunee
County area has attained the 8-hour
ozone NAAQS. For ozone, an area may
be considered to be attaining the 8-hour
ozone NAAQS if there are no violations,
as determined in accordance with 40
CFR 50.10 and part 50, Appendix I,
based on three complete, consecutive
calendar years of quality-assured air
quality monitoring data. To attain this
standard, the 3-year average of the
fourth-highest daily maximum 8-hour
average ozone concentrations measured
70259
at each monitor within an area over
each year must not exceed 0.08 ppm.
Based on the rounding convention
described in 40 CFR part 50, Appendix
I, the standard is attained if the design
value is 0.084 ppm or below. The data
must be collected and quality-assured in
accordance with 40 CFR part 58, and
recorded in the Aerometric Information
Retrieval System (AIRS). The monitors
generally should have remained at the
same location for the duration of the
monitoring period required for
demonstrating attainment.
WDNR submitted ozone monitoring
data for the 2004 to 2006 ozone seasons.
The WDNR quality-assured the ambient
monitoring in accordance with 40 CFR
58.10, and recorded it in the AIRS
database, thus making the data publicly
available. The data meet the
completeness criteria in 40 CFR 50,
Appendix I, which requires a minimum
completeness of 75 percent annually
and 90 percent over each three year
period. Preliminary 2007 monitoring
data show that the area continues to
meet the 8-hour ozone NAAQS.
Monitoring data is presented in Table 1
below.
TABLE 1.—KEWAUNEE COUNTY ANNUAL 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS AND 3-YEAR
AVERAGE OF 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS.
2004
4th high
(ppm)
Monitor
55–061–0002 ...............................................................................................................................
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In addition, as discussed below with
respect to the maintenance plans,
WDNR has committed to continue
monitoring ozone levels in Kewaunee
County and to discuss with EPA any
changes in the siting that may become
necessary. WDNR will continue to
quality assure monitoring data in
accordance with 40 CFR part 58 and
enter all data into the Air Quality
System on a timely basis in accordance
with federal guidelines. In summary,
EPA believes that the data submitted by
Wisconsin provide an adequate
demonstration that the Kewaunee
County area has attained the 8-hour
ozone NAAQS.
2. The Area Has Met All Applicable
Requirements Under Section 110 and
Part D; and the Area Has a Fully
Approved SIP Under Section 110(k)
(Sections 107(d)(3)(E)(v) and
107(d)(3)(E)(ii))
We have determined that Wisconsin
has met all currently applicable SIP
requirements for purposes of
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redesignation for the Kewaunee County
area under Section 110 of the CAA
(general SIP requirements). We have
also determined that the Wisconsin SIP
meets all SIP requirements currently
applicable for purposes of redesignation
under part D of Title I of the CAA
(requirements specific to subpart 1
nonattainment areas), in accordance
with section 107(d)(3)(E)(v). In addition,
we have determined that the Wisconsin
SIP is fully approved with respect to all
applicable requirements for purposes of
redesignation, in accordance with
section 107(d)(3)(E)(ii). In making these
determinations, we have ascertained
what SIP requirements are applicable to
the area for purposes of redesignation,
and have determined that the portions
of the SIP meeting these requirements
are fully approved under section 110(k)
of the CAA. As discussed more fully
below, SIPs must be fully approved only
with respect to currently applicable
requirements of the CAA.
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0.073
2005
4th high
(ppm)
0.088
2006
4th high
(ppm)
0.077
2004–2006
average
4th high
(ppm)
0.079
a. The Kewaunee County Area Has Met
All Applicable Requirements Under
Section 110 and Part D of the CAA
The September 4, 1992 Calcagni
memorandum (see ‘‘Procedures for
Processing Requests to Redesignate
Areas to Attainment,’’ Memorandum
from John Calcagni, Director, Air
Quality Management Division,
September 4, 1992) describes EPA’s
interpretation of section 107(d)(3)(E) of
the CAA. Under this interpretation, a
state and the area it wishes to
redesignate must meet the relevant CAA
requirements that are due prior to the
state’s submittal of a complete
redesignation request for the area. See
also the September 17, 1993 Michael
Shapiro memorandum and 60 FR 12459,
12465–66 (March 7, 1995)
(redesignation of Detroit-Ann Arbor,
Michigan to attainment of the 1-hour
ozone NAAQS). Applicable
requirements of the CAA that come due
subsequent to the state’s submittal of a
complete request remain applicable
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until a redesignation to attainment is
approved, but are not required as a
prerequisite to redesignation. See
section 175A(c) of the CAA. Sierra Club
v. EPA, 375 F.3d 537 (7th Cir. 2004). See
also 68 FR 25424, 25427 (May 12, 2003)
(redesignation of the St. Louis/East St.
Louis area to attainment of the 1-hour
ozone NAAQS).
General SIP requirements. Section
110(a) of title I of the CAA contains the
general requirements for a SIP. Section
110(a)(2) provides that the
implementation plan submitted by a
state must have been adopted by the
state after reasonable public notice and
hearing, and that, among other things, it
includes enforceable emission
limitations and other control measures,
means or techniques necessary to meet
the requirements of the CAA; provides
for establishment and operation of
appropriate devices, methods, systems
and procedures necessary to monitor
ambient air quality; provides for
implementation of a source permit
program to regulate the modification
and construction of any stationary
source within the areas covered by the
plan; includes provisions for the
implementation of part C, Prevention of
Significant Deterioration (PSD) and part
D, NSR permit programs; includes
criteria for stationary source emission
control measures, monitoring, and
reporting; includes provisions for air
quality modeling; and provides for
public and local agency participation in
planning and emission control rule
development.
Section 110(a)(2)(D) of the CAA
requires that SIPs contain measures to
prevent sources in a state from
significantly contributing to air quality
problems in another state. To
implement this provision, EPA has
required certain states to establish
programs to address transport of air
pollutants (NOX SIP Call,1 Clean Air
Interstate Rule (CAIR) (70 FR 25162)).
However, the section 110(a)(2)(D)
requirements for a state are not linked
with a particular nonattainment area’s
designation and classification. EPA
believes that the requirements linked
with a particular nonattainment area’s
designation and classification are the
relevant measures to evaluate in
reviewing a redesignation request.
When the transport SIP submittal
requirements are applicable to a state,
they will continue to apply to the state
regardless of the attainment designation
1 On October 27, 1998 (63 FR 57356), EPA issued
a NOX SIP call requiring the District of Columbia
and 22 states to reduce emissions of NOX in order
to reduce the transport of ozone and ozone
precursors. Wisconsin was not included in EPA’s
NOX SIP call.
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of any one particular area in the state.
Therefore, we believe that these
requirements should not be construed to
be applicable requirements for purposes
of redesignation. Further, we believe
that the other section 110 elements
described above that are not connected
with nonattainment plan submissions
and not linked with an area’s attainment
status are also not applicable
requirements for purposes of
redesignation. A state remains subject to
these requirements after an area is
redesignated to attainment. We
conclude that only the section 110 and
part D requirements which are linked
with a particular area’s designation and
classification are the relevant measures
which we may consider in evaluating a
redesignation request. This approach is
consistent with EPA’s existing policy on
applicability of conformity and
oxygenated fuels requirements for
redesignation purposes, as well as with
section 184 ozone transport
requirements. See Reading,
Pennsylvania, proposed and final
rulemakings (61 FR 53174–53176,
October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Lorain, Ohio,
final rulemaking (61 20458, May 7,
1996); and Tampa, Florida, final
rulemaking (60 FR 62748, December 7,
1995). See also the discussion on this
issue in the Cincinnati ozone
redesignation (65 FR 37890, June 19,
2000), and in the Pittsburgh ozone
redesignation (66 FR 50399, October 19,
2001).
As discussed above, we believe that
section 110 elements which are not
linked to the area’s nonattainment status
are not applicable for purposes of
redesignation. Because there are no
section 110 requirements linked to the
part D requirements for 8-hour ozone
nonattainment areas that have become
due, as explained below, there are no
part D requirements applicable for
purposes of redesignation under the 8hour standard.
Part D Requirements. EPA has
determined that the Wisconsin SIP
meets applicable SIP requirements
under part D of the CAA, since no
requirements applicable for purposes of
redesignation became due for the 8-hour
ozone standard prior to WDNR’s
submission of the redesignation request
for the Kewaunee County area. Under
part D, an area’s classification
determines the requirements to which it
will be subject. Subpart 1 of part D,
found in sections 172–176 of the CAA,
sets forth the basic nonattainment
requirements applicable to all
nonattainment areas. Section 182 of the
CAA, found in subpart 2 of part D,
establishes additional specific
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requirements depending on the area’s
nonattainment classification. The
Kewaunee County area was classified as
a subpart 1 nonattainment area, and,
therefore, subpart 2 requirements do not
apply.
Part D, subpart 1 applicable SIP
requirements. For purposes of
evaluating these redesignation requests,
the applicable part D, subpart 1 SIP
requirements for the Kewaunee County
area are contained in sections 172(c)(1)–
(9). A thorough discussion of the
requirements contained in section 172
can be found in the General Preamble
for Implementation of Title I (57 FR
13498, April 16, 1992).
No requirements applicable for
purposes of redesignation under part D
became due prior to submission of the
redesignation request, and, therefore,
none are applicable to the areas for
purposes of redesignation. Since the
State of Wisconsin has submitted a
complete ozone redesignation request
for the Kewaunee County area prior to
the deadline for any submissions
required for purposes of redesignation,
we have determined that these
requirements do not apply to the
Kewaunee County area for purposes of
redesignation.
Furthermore, EPA has determined
that, since PSD requirements will apply
after redesignation, areas being
redesignated need not comply with the
requirement that a NSR program be
approved prior to redesignation,
provided that the area demonstrates
maintenance of the NAAQS without
part D NSR. A more detailed rationale
for this view is described in a
memorandum from Mary Nichols,
Assistant Administrator for Air and
Radiation, dated October 14, 1994,
entitled, ‘‘Part D New Source Review
Requirements for Areas Requesting
Redesignation to Attainment.’’
Wisconsin has demonstrated that the
area to be redesignated will be able to
maintain the standard without part D
NSR in effect; therefore, EPA concludes
that the State need not have a fully
approved part D NSR program prior to
approval of the redesignation request.
The State’s PSD program will become
effective in the Kewaunee County area
upon redesignation to attainment. See
rulemakings for Detroit, Michigan (60
FR 12467–12468, March 7, 1995);
Cleveland-Akron-Lorain, Ohio (61 FR
20458, 20469–20470, May 7, 1996);
Louisville, Kentucky (66 FR 53665,
October 23, 2001); and Grand Rapids,
Michigan (61 FR 31834–31837, June 21,
1996).
Section 176 conformity requirements.
Section 176(c) of the CAA requires
states to establish criteria and
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procedures to ensure that federallysupported or funded activities,
including highway projects, conform to
the air quality planning goals in the
applicable SIPs. The requirement to
determine conformity applies to
transportation plans, programs and
projects developed, funded or approved
under title 23 of the U.S. Code and the
Federal Transit Act (transportation
conformity) as well as to all other
federally-supported or funded projects
(general conformity). State conformity
revisions must be consistent with
federal conformity regulations relating
to consultation, enforcement and
enforceability, which EPA promulgated
pursuant to CAA requirements.
EPA believes that it is reasonable to
interpret the conformity SIP
requirements as not applying for
purposes of evaluating the redesignation
request under section 107(d) for two
reasons. First, the requirement to submit
SIP revisions to comply with the
conformity provisions of the CAA
continues to apply to areas after
redesignation to attainment since such
areas would be subject to a section 175A
maintenance plan. Second, EPA’s
federal conformity rules require the
performance of conformity analyses in
the absence of federally-approved state
rules. Therefore, because areas are
subject to the conformity requirements
regardless of whether they are
redesignated to attainment and, because
they must implement conformity under
federal rules if state rules are not yet
approved, EPA believes it is reasonable
to view these requirements as not
applying for purposes of evaluating a
redesignation request. See Wall v. EPA,
265 F.3d 426 (6th Cir. 2001), upholding
this interpretation. See also 60 FR
62748, 62749–62750 (Dec. 7, 1995)
(Tampa, Florida).
EPA approved Wisconsin’s general
and transportation conformity SIPs on
July 29, 1996 (61 FR 39329) and August
27, 1996 (61 FR 43970), respectively.
Wisconsin has submitted onroad motor
vehicle budgets for the Kewaunee
County area of 0.43 and 0.32 tpd VOC
and 0.80 and 0.47 tpd NOX for the years
2012 and 2018, respectively. The area
must use the MVEBs from the
maintenance plan in any conformity
determination that is effective on or
after the effective date of the
maintenance plan approval. Thus, the
Kewaunee County area has satisfied all
applicable requirements under section
110 and part D of the CAA.
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b. The Kewaunee County Area Has a
Fully Approved Applicable SIP Under
Section 110(k) of the CAA
EPA has fully approved the
Wisconsin SIP for the Kewaunee County
area under section 110(k) of the CAA for
all requirements applicable for purposes
of redesignation. EPA may rely on prior
SIP approvals in approving a
redesignation request (See the
September 4, 1992 John Calcagni
memorandum, page 3, Southwestern
Pennsylvania Growth Alliance v.
Browner, 144 F.3d 984, 989–990 (6th
Cir. 1998), Wall v. EPA, 265 F.3d 426
(6th Cir. 2001)) plus any additional
measures it may approve in conjunction
with a redesignation action. See 68 FR
25413, 25426 (May 12, 2003). Since the
passage of the CAA of 1970, Wisconsin
has adopted and submitted, and EPA
has fully approved, provisions
addressing the various required SIP
elements applicable to the Kewaunee
County area under the 1-hour ozone
standard. No Kewaunee County area SIP
provisions are currently disapproved,
conditionally approved, or partially
approved.
3. The Improvement in Air Quality Is
Due to Permanent and Enforceable
Reductions in Emissions Resulting From
Implementation of the SIP and
Applicable Federal Air Pollution
Control Regulations and Other
Permanent and Enforceable Reductions
(Section 107(d)(3)(E)(iii))
EPA finds that Wisconsin has
demonstrated that the observed air
quality improvement in the Kewaunee
County area is due to permanent and
enforceable reductions in emissions
resulting from implementation of the
SIP, federal measures, and other stateadopted measures.
In making this demonstration, the
State has calculated the change in
emissions between 2002, one of the
years used to designate the area as
nonattainment, and 2005, one of the
years the Kewaunee County area
monitored attainment. The reduction in
emissions and the corresponding
improvement in air quality over this
time period can be attributed to a
number of regulatory control measures
that Kewaunee County and upwind
areas have implemented in recent years.
The Kewaunee County area is impacted
by the transport of ozone and ozone
precursors from upwind areas.
Therefore, local controls as well as
controls implemented in upwind areas
are relevant to the improvement in air
quality in the Kewaunee County area.
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70261
a. Permanent and Enforceable Controls
Implemented
The following is a discussion of
permanent and enforceable measures
that have been implemented in the
areas:
NOX rules. Wisconsin adopted NOX
controls for large existing sources and
established emissions standards for new
sources as part of their rate of progress
plan under the 1-hour ozone standard.
Federal Emission Control Measures.
Reductions in VOC and NOX emissions
have occurred statewide and in upwind
areas as a result of federal emission
control measures, with additional
emission reductions expected to occur
in the future. Federal emission control
measures include: Maximum
Achievable Control Technology
Standards, the National Low Emission
Vehicle (NLEV) program, Tier 2
emission standards for vehicles,
gasoline sulfur limits, low sulfur diesel
fuel standards, and heavy-duty diesel
engine standards. In addition, in 2004,
EPA issued the Clean Air Non-road
Diesel Rule (69 FR 38958 (July 29,
2004)). EPA expects this rule to reduce
off-road diesel emissions through 2010,
with emission reductions starting in
2008.
Control Measures in Upwind Areas.
On October 27, 1998 (63 FR 57356), EPA
issued a NOX SIP call requiring the
District of Columbia and 22 states to
reduce emissions of NOX. The reduction
in NOX emissions has resulted in lower
concentrations of transported ozone
entering the Kewaunee County area.
Emission reductions resulting from
regulations developed in response to the
NOX SIP call are permanent and
enforceable.
b. Emission Reductions
Wisconsin is using 2002 for the
nonattainment inventory and 2005, one
of the years used to demonstrate
monitored attainment of the NAAQS,
for the attainment inventory. WDNR
prepared comprehensive inventories for
both 2002 and 2005 for Kewaunee
County as part of a larger inventory
effort. Point source inventories were
developed using source specific data.
Area source emissions were estimated
based on various activity data compiled
by the Census Bureau, the Energy
Information Administration, the Bureau
of Economic Analysis, and several
Wisconsin State agencies. Nonroad
mobile emissions were generated using
EPA’s National Mobile Inventory Model
(NMIM) and adding emissions estimates
for aircraft, commercial marine vessels,
and railroads, three nonroad categories
not included in NMIM. Onroad mobile
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emissions were calculated using
MOBILE6.2.
Using the inventories described
above, Wisconsin’s submittal
documents changes in VOC and NOX
emissions from 2002 to 2005 for the
Kewaunee County area. Because
Kewaunee County is impacted by
transport, WDNR also documented
emissions reductions for the upwind
Wisconsin areas of Milwaukee-Racine,
Sheboygan, and Manitowoc County.
Emissions data are shown in Tables 3
through 5 below.
TABLE 3.—VOC AND NOX EMISSIONS FOR NONATTAINMENT YEAR 2002 (tpd)
Kewaunee County
VOC
NOX
Milwaukee-Racine
VOC
NOX
Sheboygan
VOC
Manitowoc County
NOX
VOC
Wisconsin upwind
areas total
NOX
VOC
NOX
Point .............................................
Area ..............................................
Nonroad ........................................
Onroad .........................................
0.3
1.3
1.7
0.8
0.05
0.1
2.1
1.2
14.7
120.6
62.1
45.4
114.9
12.1
52.2
101.6
2.5
10.9
5.6
4.1
26.1
0.9
4.5
8.2
1.6
5.1
3.7
3.6
2.9
0.4
4.2
7.4
18.8
136.6
71.4
53.1
143.9
13.4
60.9
117.2
Total ......................................
4.1
3.5
242.8
280.8
23.1
39.7
14.0
14.9
279.9
335.4
TABLE 4.—VOC AND NOX EMISSIONS FOR ATTAINMENT YEAR 2005 (TPD)
Kewaunee County
VOC
NOX
Milwaukee-Racine
VOC
NOX
Sheboygan
VOC
Manitowoc County
NOX
VOC
Wisconsin upwind
areas total
NOX
VOC
NOX
Point .............................................
Area ..............................................
Nonroad ........................................
Onroad .........................................
0.2
1.3
1.6
0.6
0.01
0.1
1.7
1.2
13.8
107.5
54.0
36.0
68.6
13.4
49.1
86.2
2.3
7.8
5.4
2.9
13.2
1.1
4.1
7.8
1.3
4.9
3.4
2.6
3.2
0.5
3.8
7.4
17.4
120.2
62.8
41.5
85.0
15.0
57.0
101.4
Total ......................................
3.7
3.0
211.3
217.3
18.4
26.2
12.2
14.9
241.9
258.4
TABLE 5. COMPARISON OF 2002 AND 2005 VOC AND NOX EMISSIONS (TPD)
Kewaunee County
VOC
NOX
Sector
2002
Wisconsin upwind areas total
Net
change
(2002–
2005)
2005
2002
2005
VOC
Net
change
(2002–
2005)
2002
2005
NOX
Net
change
(2002–
2005)
2002
2005
Net
change
(2002–
2005)
0.3
1.3
1.7
0.8
0.2
1.3
1.6
0.6
¥0.1
0.0
¥0.1
¥0.2
0.05
0.1
2.1
1.2
0.01
0.1
1.7
1.2
¥0.04
0.0
¥0.4
0.0
18.8
136.6
71.4
53.1
17.4
120.2
62.8
41.5
¥1.4
¥16.4
¥8.6
¥11.6
143.9
13.4
60.9
117.2
85.0
15.0
57.0
101.4
¥58.9
1.6
¥3.9
¥15.8
Total ..
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Point .........
Area ..........
Nonroad ....
Onroad .....
4.1
3.7
¥0.4
3.45
3.01
¥0.4
279.9
241.9
¥38.0
335.4
258.4
¥77.0
Table 5 shows that the Kewaunee
County area reduced VOC emissions by
0.4 tpd and NOX emissions by 0.4 tpd
between 2002 and 2005. In addition,
upwind areas in Wisconsin reduced
VOC emissions by 38.0 tpd and NOX
emissions by 77.0 tpd between 2002 and
2005. Based on the information
summarized above, Wisconsin has
adequately demonstrated that the
improvement in air quality is due to
permanent and enforceable emissions
reductions.
4. The Area Has a Fully Approved
Maintenance Plan Pursuant to Section
175a of the CAA (Section
107(d)(3)(E)(iv))
In conjunction with its request to
redesignate the Kewaunee County
nonattainment area to attainment status,
Wisconsin submitted a SIP revision to
provide for the maintenance of the 8hour ozone NAAQS in the area through
2018.
a. What is required in a maintenance
plan?
Section 175A of the CAA sets forth
the required elements of a maintenance
plan for areas seeking redesignation
from nonattainment to attainment.
Under section 175A, the plan must
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demonstrate continued attainment of
the applicable NAAQS for at least ten
years after the Administrator approves a
redesignation to attainment. Eight years
after the redesignation, the state must
submit a revised maintenance plan
which demonstrates that attainment will
continue to be maintained for ten years
following the initial ten-year
maintenance period. To address the
possibility of future NAAQS violations,
the maintenance plan must contain
contingency measures with a schedule
for implementation as EPA deems
necessary to assure prompt correction of
any future 8-hour ozone violations.
The September 4, 1992, John Calcagni
memorandum provides additional
guidance on the content of a
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maintenance plan. The memorandum
clarifies that an ozone maintenance plan
should address the following items: The
attainment VOC and NOX emissions
inventories, a maintenance
demonstration showing maintenance for
the ten years of the maintenance period,
a commitment to maintain the existing
monitoring network, factors and
procedures to be used for verification of
continued attainment of the NAAQS,
and a contingency plan to prevent or
correct future violations of the NAAQS.
b. Attainment Inventory
The WDNR developed an emissions
inventory for 2005, one of the years
Wisconsin used to demonstrate
monitored attainment of the 8-hour
NAAQS, as described above. The
attainment level of emissions is
summarized in Table 4, above.
c. Demonstration of Maintenance
Wisconsin submitted with the
redesignation request a revision to the 8hour ozone SIP to include a
maintenance plan for the Kewaunee
County area, in compliance with section
175A of the CAA. This demonstration
shows maintenance of the 8-hour ozone
standard through 2018 by assuring that
current and future emissions of VOC
and NOX for the Kewaunee County area
remain at or below attainment year
emission levels. A maintenance
demonstration need not be based on
modeling. See Wall v. EPA, 265 F.3d
426 (6th Cir. 2001), Sierra Club v. EPA,
375 F. 3d 537 (7th Cir. 2004). See also
66 FR 53094, 53099–53100 (October 19,
2001), 68 FR 25413, 25430–25432 (May
12, 2003).
Wisconsin is using projected
emissions inventories for the years 2012
and 2018 to demonstrate maintenance.
Point and area source emissions were
projected from the 2005 base year using
growth factors. Nonroad mobile
emissions were generated for 2012 and
2018 using NMIM and grown emissions
for aircraft, commercial marine vessels,
and railroads were added in. Onroad
mobile source emissions projections
were created using MOBILE6.2.
Emissions estimates are presented in
Table 6 below.
TABLE 6.—KEWAUNEE COUNTY: COMPARISON OF 2005–2018 VOC AND NOX EMISSIONS (TPD)
VOC
NOX
Sector
2005
2012
2018
Net
change
2005–
2018
2005
2012
2018
Net
change
2005–
2018
0.2
1.3
1.6
0.6
0.3
1.4
1.3
0.43
0.3
1.3
1.2
0.32
0.10
0.00
¥0.40
¥0.28
0.01
0.1
1.7
1.2
0.01
0.1
1.5
0.80
0.0
0.1
1.4
0.47
¥0.01
0.00
¥0.30
¥0.73
Total ..........................................................................
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Point .................................................................................
Area ..................................................................................
Nonroad ...........................................................................
Onroad .............................................................................
3.7
3.43
3.12
¥0.58
3.01
2.41
1.97
¥1.04
The emission projections show that
WDNR does not expect emissions in the
Kewaunee County area to exceed the
level of the 2005 attainment year
inventory during the maintenance
period. In the Kewaunee County area,
WDNR projects that VOC and NOX
emissions will decrease by 0.58 tpd and
1.04 tpd, respectively.
As part of its maintenance plan, the
State elected to include a ‘‘safety
margin’’ for the area. A ‘‘safety margin’’
is the difference between the attainment
level of emissions (from all sources) and
the projected level of emissions (from
all sources) in the maintenance plan
which continues to demonstrate
attainment of the standard. The
attainment level of emissions is the
level of emissions during one of the
years in which the area met the NAAQS.
The Kewaunee County area attained the
8-hour ozone NAAQS during the 2004–
2006 time period. Wisconsin used 2005
as the attainment level of emissions for
the area. In the maintenance plan,
WDNR projected emission levels for
2018. For Kewaunee County, the
emissions from point, area, nonroad,
and mobile sources in 2005 equaled 3.7
tpd of VOC. WDNR projected VOC
emissions for the year 2018 to be 3.12
tpd of VOC. The SIP submission
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demonstrates that the Kewaunee County
area will continue to maintain the
standard with emissions at this level.
The safety margin for VOC is calculated
to be the difference between these
amounts or, in this case, 0.58 tpd of
VOC for 2018. By this same method,
1.04 tpd (i.e., 3.01 tpd less 2.41 tpd) is
the safety margin for NOX for 2018. The
safety margin, or a portion thereof, can
be allocated to any of the source
categories, as long as the total
attainment level of emissions is
maintained.
d. Monitoring Network
Wisconsin currently operates one
ozone monitor in Kewaunee County.
Wisconsin has committed to continue to
operate and maintain an approved
ozone monitoring network in
Kewaunee. WDNR has also committed
to consult with EPA regarding any
changes in siting that may become
necessary in the future. WDNR will
continue to quality assure monitoring
data in accordance with 40 CFR part 58
and enter all data into the Air Quality
System on a timely basis in accordance
with federal guidelines.
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e. Verification of Continued Attainment
Continued attainment of the ozone
NAAQS in the Kewaunee County area
depends, in part, on the State’s efforts
toward tracking indicators of continued
attainment during the maintenance
period. Wisconsin’s plan for verifying
continued attainment of the 8-hour
standard in the Kewaunee County area
consists of plans to continue ambient
ozone monitoring in accordance with
the requirements of 40 CFR part 58. The
State will also evaluate future VOC and
NOX emissions inventories for increases
over 2005 levels.
f. Contingency Plan
The contingency plan provisions are
designed to promptly correct or prevent
a violation of the NAAQS that might
occur after redesignation of an area to
attainment. Section 175A of the CAA
requires that a maintenance plan
include such contingency measures as
EPA deems necessary to assure that the
state will promptly correct a violation of
the NAAQS that occurs after
redesignation. The maintenance plan
should identify the contingency
measures to be adopted, a schedule and
procedure for adoption and
implementation of the contingency
measures, and a time limit for action by
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the state. The state should also identify
specific indicators to be used to
determine when the contingency
measures need to be adopted and
implemented. The maintenance plan
must include a requirement that the
state will implement all measures with
respect to control of the pollutant(s) that
were contained in the SIP before
redesignation of the area to attainment.
See section 175A(d) of the CAA.
As required by section 175A of the
CAA, Wisconsin has adopted a
contingency plan for the Kewaunee area
to address possible future ozone air
quality problems. A contingency plan
response will be triggered whenever a
three-year average fourth-high
monitored value of 0.085 ppm or greater
is monitored within the maintenance
area. When a response is triggered,
WDNR will determine whether a special
event, malfunction, or non-compliance
with permit conditions or rule
requirements resulted in high ozone
concentrations in order to immediately
address needed corrective measures.
The WDNR will also review
meteorological conditions during high
ozone episodes. The State will conduct
this review within 6 months following
the close of the ozone season. If the high
values were found not to be prompted
by an exceptional event, malfunction, or
non-compliance with a permit condition
or rule requirement, WDNR will
evaluate existing but not fully
implemented, on-the way, and, if
necessary, new control measures
necessary to return the area to
attainment within 18 months. EPA is
interpreting this commitment to mean
that the measure will be in place within
18 months. In addition, it is EPA’s
understanding that to acceptably
address a violation of the standard,
existing and on-the way control
measures must be in excess of emissions
reductions included in the projected
maintenance inventories.
In its maintenance plan, WDNR
included the following list of potential
contingency measures:
i. Broaden the application of the NOX
RACT program by including a larger
geographic area, and/or including
sources with potential emissions of 50
tons per year, and/or increasing the
cost-effectiveness thresholds utilized as
a basis for Wisconsin’s NOX RACT
Program; and/or
ii. Broaden the geographic area for the
idling control program for mobile
sources targeting diesel vehicles; and/or
iii. Reduced VOC content in
Architectural, Industrial and
Maintenance coatings rule; and/or
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iv. Reduced VOC content in
commercial and consumer products;
and/or
v. Reduced VOC content from federal
motor vehicle toxics rule; and/or
Control measures identified as RACM
in a regional attainment demonstration
for ozone control.
g. Provisions for Future Updates of the
Ozone Maintenance Plan
As required by section 175A(b) of the
CAA, Wisconsin commits to submit to
the EPA updated ozone maintenance
plans eight years after redesignation of
the Kewaunee County area to cover an
additional 10-year period beyond the
initial 10-year maintenance period. As
required by section 175(A) of the CAA,
Wisconsin has committed to
maintaining the existing controls after
redesignation unless the State
demonstrates that the standard can be
maintained without one or more
controls. Wisconsin also commits that
any changes to its rules or emission
limits applicable to VOC and/or NOX
sources, as required for maintenance of
the ozone standard in the Kewaunee
County area as well as contingency
measures adopted under the section
175A maintenance plan, will be
submitted to EPA for approval as a SIP
revision. Wisconsin has also asserted
that the WDNR has the necessary
resources to actively enforce any
violations of its rules or permit
provisions.
EPA has concluded that the
maintenance plan adequately addresses
the five basic components of a
maintenance plan: Attainment
inventory, maintenance demonstration,
monitoring network, verification of
continued attainment, and a
contingency plan. The maintenance
plan SIP revision submitted by
Wisconsin for the Kewaunee County
area meets the requirements of section
175A of the CAA.
B. Adequacy of Wisconsin’s MVEBs
Under the CAA, states are required to
submit, at various times, control strategy
SIP revisions and ozone maintenance
plans for ozone nonattainment areas and
for areas seeking redesignations to
attainment of the ozone standard. These
emission control strategy SIP revisions
(e.g., reasonable further progress SIP
and attainment demonstration SIP
revisions) and ozone maintenance plans
create MVEBs based on onroad mobile
source emissions for criteria pollutants
and/or their precursors to address
pollution from cars and trucks. The
MVEBs are the portions of the total
allowable emissions that are allocated to
highway and transit vehicle use that,
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together with emissions from other
sources in the area, will provide for
attainment or maintenance.
Under 40 CFR Part 93, a MVEB for an
area seeking a redesignation to
attainment is established for the last
year of the maintenance plan. The
MVEB serves as a ceiling on emissions
from an area’s planned transportation
system. The MVEB concept is further
explained in the preamble to the
November 24, 1993, transportation
conformity rule (58 FR 62188). The
preamble also describes how to
establish the MVEB in the SIP and how
to revise the MVEB if needed.
Under section 176(c) of the CAA, new
transportation projects, such as the
construction of new highways, must
‘‘conform’’ to (i.e., be consistent with)
the part of the SIP that addresses
emissions from cars and trucks.
Conformity to the SIP means that
transportation activities will not cause
new air quality violations, worsen
existing air quality violations, or delay
timely attainment of the NAAQS. If a
transportation plan does not conform,
most new transportation projects that
would expand the capacity of roadways
cannot go forward. Regulations at 40
CFR part 93 set forth EPA policy,
criteria, and procedures for
demonstrating and assuring conformity
of such transportation activities to a SIP.
When reviewing SIP revisions
containing MVEBs, including
attainment strategies, rate-of-progress
plans, and maintenance plans, EPA
must affirmatively find that the MVEBs
are ‘‘adequate’’ for use in determining
transportation conformity. Once EPA
affirmatively finds the submitted
MVEBs to be adequate for transportation
conformity purposes, the MVEBs are
used by state and federal agencies in
determining whether proposed
transportation projects conform to the
SIP as required by section 176(c) of the
CAA. EPA’s substantive criteria for
determining the adequacy of MVEBs are
set out in 40 CFR 93.118(e)(4).
EPA’s process for determining
adequacy of a MVEB consists of three
basic steps: (1) Providing public
notification of a SIP submission; (2)
providing the public the opportunity to
comment on the MVEB during a public
comment period; and, (3) EPA’s finding
of adequacy. The process of determining
the adequacy of submitted SIP MVEBs
was initially outlined in EPA’s May 14,
1999 guidance, ‘‘Conformity Guidance
on Implementation of March 2, 1999,
Conformity Court Decision.’’ This
guidance was codified in the
Transportation Conformity Rule
Amendments for the ‘‘New 8-Hour
Ozone and PM 2.5 National Ambient
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Air Quality Standards and
Miscellaneous Revisions for Existing
Areas; Transportation Conformity Rule
Amendments—Response to Court
Decision and Additional Rule Change,’’
published on July 1, 2004 (69 FR
40004). EPA follows this guidance and
rulemaking in making its adequacy
determinations.
The Kewaunee County area’s
maintenance plan contains new VOC
and NOX MVEBs for the years 2012 and
2018. The availability of the SIP
submission with these 2012 and 2018
MVEBs was announced for public
comment on EPA’s Adequacy Web page
on September 24, 2007 at: https://
www.epa.gov/otaq/stateresources/
transconf/currsips.htm. The EPA public
comment period on adequacy of the
2012 and 2018 MVEBs for the
Kewaunee County area closed on
October 24, 2007. No requests for this
submittal or adverse comments on the
submittal were received during the
adequacy comment period. In a letter
dated November 6, 2007, EPA informed
WDNR that we had found the 2012 and
2018 MVEBs to be adequate for use in
transportation conformity analyses.
EPA, through this rulemaking, is
proposing to approve the MVEBs for use
to determine transportation conformity
in the Kewaunee County area because
EPA has determined that the area can
maintain attainment of the 8-hour ozone
NAAQS for the relevant maintenance
period with mobile source emissions at
the levels of the MVEBs. WDNR has
determined the 2012 MVEBs for the
Kewaunee County area to be 0.43 tpd for
VOC and 0.80 tpd for NOX. WDNR has
determined the 2018 MVEBs for the area
to be 0.32 tpd for VOC and 0.47 tpd for
NOX. These MVEBs are consistent with
the onroad mobile source VOC and NOX
emissions projected by MDEQ for 2012
and 2018, as summarized in Table 6
above (‘‘onroad’’ source sector).
Wisconsin has demonstrated that the
Kewaunee County area can maintain the
8-hour ozone NAAQS with mobile
source emissions of 0.43 tpd and 0.32
tpd of VOC and 0.80 tpd and 0.47 tpd
of NOX in 2012 and 2018, respectively,
since emissions will remain under
attainment year emission levels.
VIII. What Action Is EPA Taking?
EPA is proposing to make a
determination that the Keweaunee
County area has attained the 8-hour
ozone NAAQS. EPA is also proposing to
approve the maintenance plan SIP
revision for the Kewaunee County area.
EPA’s proposed approval of the
maintenance plan is based on
Wisconsin’s demonstration that the plan
meets the requirements of section 175A
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70265
of the CAA, as described more fully
above. After evaluating Wisconsin’s
redesignation request, EPA has
determined that it meets the
redesignation criteria set forth in section
107(d)(3)(E) of the CAA. Therefore, EPA
is proposing to approve the
redesignation of the Kewaunee County
area from nonattainment to attainment
for the 8-hour ozone NAAQS. The final
approval of this redesignation request
would change the official designation
for the Kewaunee County area from
nonattainment to attainment for the 8hour ozone standard. Finally, EPA is
proposing to approve the 2012 and 2018
MVEBs submitted by Wisconsin in
conjunction with the redesignation
request.
Executive Order 13132: Federalism
This action also does not have
Federalism implications because it does
not have substantial direct effects on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). Redesignation is an
action that merely affects the status of
a geographical area, does not impose
any new requirements on sources, or
allows a state to avoid adopting or
implementing other requirements, and
does not alter the relationship or the
distribution of power and
responsibilities established in the CAA.
IX. Statutory and Executive Order
Reviews
Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This proposed rule also does not have
tribal implications because it will not
have a substantial direct effect on one or
more Indian tribes, on the relationship
between the federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
federal government and Indian tribes, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, September 30, 1993), this action
is not a ‘‘significant regulatory action’’
and, therefore, is not subject to review
by the Office of Management and
Budget.
Paperwork Reduction Act
This proposed rule does not impose
an information collection burden under
the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501,
et seq.).
Regulatory Flexibility Act
This proposed action merely proposes
to approve state law as meeting federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Redesignation of an area to
attainment under section 107(d)(3)(E) of
the CAA does not impose any new
requirements on small entities.
Redesignation is an action that affects
the status of a geographical area and
does not impose any new regulatory
requirements on sources. Accordingly,
the Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601, et seq.).
Unfunded Mandates Reform Act
Because this rule proposes to approve
pre-existing requirements under state
law, and does not impose any additional
enforceable duty beyond that required
by state law, it 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).
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Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This proposed rule also is not subject
to Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant.
Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ‘‘significant
regulatory action’’ under Executive
Order 12866 or a ‘‘significant energy
action,’’ this action is also not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001).
National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTA), 15 U.S.C. 272,
requires federal agencies to use
technical standards that are developed
or adopted by voluntary consensus to
carry out policy objectives, so long as
such standards are not inconsistent with
applicable law or otherwise
impracticable. In reviewing program
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submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the CAA. Absent a prior
existing requirement for the state to use
voluntary consensus standards, EPA has
no authority to disapprove a program
submission for failure to use such
standards, and it would thus be
inconsistent with applicable law for
EPA to use voluntary consensus
standards in place of a program
submission that otherwise satisfies the
provisions of the Act. Redesignation is
an action that affects the status of a
geographical area but does not impose
any new requirements on sources. Thus,
the requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply.
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone,
Volatile organic compounds.
40 CFR Part 81
Air Pollution Control, Environmental
protection, National parks, Wilderness
areas.
Dated: November 29, 2007.
Walter W. Kovalick,
Acting Regional Administrator, Region 5.
[FR Doc. E7–23949 Filed 12–10–07; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[EPA–R01–RCRA–2007–0999; FRL–8504–3]
Rhode Island: Proposed Authorization
of State Hazardous Waste Management
Program Revisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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AGENCY:
SUMMARY: The State of Rhode Island has
applied to EPA for final authorization of
changes to its hazardous waste program
under the Resource Conservation and
Recovery Act (RCRA). EPA proposes to
grant final authorization to Rhode
Island. EPA has determined that these
changes satisfy all requirements needed
to qualify for final authorization, and is
authorizing the State’s changes through
an immediate final action.
DATES: Comments must be received on
or before January 10, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID No. PA–R01–
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16:55 Dec 10, 2007
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RCRA–2007–0999, by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• E-mail: biscaia.robin@epa.gov.
• Fax: (617) 918–0642, to the
attention of Robin Biscaia.
• Mail: Robin Biscaia, Hazardous
Waste Unit, EPA New England—Region
1, One Congress Street, Suite 1100
(CHW), Boston, MA 02114–2023.
• Hand Delivery or Courier: Deliver
your comments to: Robin Biscaia,
Hazardous Waste Unit, Office of
Ecosystem Protection, EPA New
England—Region 1, One Congress
Street, 11th Floor, (CHW), Boston, MA
02114–2023. Such deliveries are only
accepted during the Office’s normal
hours of operation, and special
arrangements should be made for
deliveries of boxed information.
For further information on how to
submit comments, please see today’s
immediate final rule published in the
‘‘Rules and Regulations’’ section of this
Federal Register.
FOR FURTHER INFORMATION CONTACT:
Robin Biscaia, Hazardous Waste Unit,
U.S. EPA New England—Region 1, One
Congress Street, Suite 1100 (CHW),
Boston, MA 02114–2023, telephone
number: (617) 918–1642; fax number:
(617) 918–0642, e-mail address:
biscaia.robin@epa.gov.
SUPPLEMENTARY INFORMATION: In the
‘‘Rules and Regulations’’ section of this
Federal Register, EPA is authorizing
these changes by an immediate final
rule. EPA did not make a proposal prior
to the immediate final rule because we
believe this action is not controversial
and do not expect adverse comments
that oppose it. We have explained the
reasons for this authorization in the
preamble to the immediate final rule.
Unless we get written adverse
comments which oppose this
authorization during the comment
period, the immediate final rule will
become effective on the date it
establishes, and we will not take further
action on this proposal. If we get
comments that oppose this action, we
will withdraw the immediate final rule
and it will not take immediate effect.
We will then respond to public
comments in a later final rule based on
this proposal. You may not have another
opportunity for comment. If you want to
comment on this action, you should do
so at this time.
Dated: November 2, 2007.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. E7–23947 Filed 12–10–07; 8:45 am]
BILLING CODE 6560–50–P
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GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–39
[FMR Case 2007–102–1; Docket 2007-0001;
Sequence 3]
RIN 3090–AI38
Federal Management Regulation; FMR
Case 2007–102–1, Replacement of
Personal Property Pursuant to the
Exchange/Sale Authority
Office of Governmentwide
Policy, General Services Administration
(GSA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: The General Services
Administration is proposing to amend
the Federal Management Regulation
(FMR) by updating coverage on the
replacement of personal property
pursuant to the exchange/sale authority.
The proposed changes were prompted
by recommendations of the Federal
Asset Management Evaluation (FAME)
interagency working group led by GSA.
DATES: Interested parties should submit
comments in writing on or before
January 10, 2008 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FMR case 2007–102–1 by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Search for any
document by first selecting the proper
document types and selecting ‘‘General
Services Administration’’ as the agency
of choice. At the ‘‘Keyword’’ prompt,
type in the FMR case number (for
example, FMR Case 2007–102–1) and
click on the ‘‘Submit’’ button. You may
also search for any document by
clicking on the ‘‘Advanced search/
document search’’ tab at the top of the
screen, selecting from the agency field
‘‘General Services Administration’’, and
typing the FMR case number in the
keyword field. Select the ‘‘Submit’’
button.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VIR), 1800 F Street, NW., Room 4035,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FMR case 2007–102–1 in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Robert Holcombe, Office of
E:\FR\FM\11DEP1.SGM
11DEP1
]]>Agencies
[Federal Register Volume 72, Number 237 (Tuesday, December 11, 2007)]
[Proposed Rules]
[Pages 70255-70266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23949]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2007-0957; FRL-8504-1]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of
Kewaunee County Area to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to make a determination under the Clean Air
Act (CAA) that the nonattainment area of Kewaunee County has attained
the 8-hour ozone National Ambient Air Quality Standard (NAAQS). This
determination is based on quality-assured ambient air quality
monitoring data for the 2004-2006 ozone seasons that demonstrate that
the 8-hour ozone NAAQS has been attained in the area. Preliminary
monitoring data for 2007 continue to show monitored attainment of the
NAAQS.
EPA is proposing to approve a request from the State of Wisconsin
to redesignate the Kewaunee County area to attainment of the 8-hour
ozone NAAQS. The Wisconsin Department of Natural Resources (WDNR)
submitted this request on June 12, 2007. In proposing to approve this
request EPA is also proposing to approve, as a revision to the
Wisconsin State Implementation Plan (SIP), the State's plan for
maintaining the 8-hour ozone NAAQS through 2018 in the area. EPA also
finds adequate and is proposing to approve the State's 2012 and 2018
Motor Vehicle Emission Budgets (MVEBs) for the Kewaunee County area.
DATES: Comments must be received on or before January 10, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0957, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 886-5824.
4. Mail: John M. 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 M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77
[[Page 70256]]
West Jackson Boulevard, 18th floor, 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-
2007-0957. 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 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. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
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 legal holidays. We
recommend that you telephone Kathleen D'Agostino, Environmental
Engineer, at (312) 886-1767 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Engineer, Criteria Pollutant 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. This supplementary information
section is arranged as follows:
Table of Contents
I. What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Proposing To Take?
III. What Is the Background for These Actions?
A. What Is the General Background Information?
B. What Is the Impact of the December 22, 2006 United States
Court of Appeals Decision Regarding EPA's Phase 1 Implementation
Rule?
IV. What Are the Criteria for Redesignation?
V. Why Is EPA Proposing To Take These Actions?
VI. What Is the Effect of These Actions?
VII. What is EPA's Analysis of the Request?
A. Attainment Determination and Redesignation
B. Adequacy of Wisconsin's MVEBs
VIII. What Action Is EPA Taking?
IX. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What Action Is EPA Proposing To Take?
EPA is proposing to take several related actions. EPA is proposing
to make a determination that the Kewaunee County nonattainment area has
attained the 8-hour ozone standard and that this area has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA is thus proposing to approve Wisconsin's request to change the
legal designation of the Kewaunee County area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
Wisconsin's maintenance plan SIP revision for Kewaunee County (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to keep the Kewaunee County
area in attainment of the ozone NAAQS through 2018. Additionally, EPA
is proposing to approve the newly-established 2012 and 2018 MVEBs for
the Kewaunee County area. The adequacy comment period for the MVEBs
began on September 24, 2007, with EPA's posting of the availability of
the submittal on EPA's Adequacy Web site (at https://www.epa.gov/otaq/
stateresources/transconf/adequacy.htm). The adequacy comment period for
these MVEBs ended on October 24, 2007. EPA did not receive any requests
for this submittal, or adverse comments on this submittal during the
adequacy comment period. In a letter dated November 6, 2007, EPA
informed WDNR that we had found the 2012 and 2018 MVEBs to be adequate
for use in transportation conformity analyses. Please see the Adequacy
section of this rulemaking for further explanation on this process.
Therefore, we find adequate, and are proposing to approve, the State's
2012 and 2018 MVEBs for transportation conformity purposes.
III. What Is the Background for These Actions?
A. What Is the General Background Information?
Ground-level ozone is not emitted directly by sources. Rather,
emissions of nitrogen oxides (NOX) and volatile organic
compounds (VOCs) react in the presence of sunlight to form ground-level
ozone. NOX and VOCs are referred to as precursors of ozone.
[[Page 70257]]
The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the current 8-hour standard, the
ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR
56693 and 56852), the Kewaunee County area was designated as a moderate
nonattainment area under the 1-hour ozone NAAQS. The area was
subsequently redesignated to attainment of the 1-hour standard on
August 26, 1996 (61 FR 43668). At the time EPA revoked the 1-hour ozone
NAAQS, on June 15, 2005, the Kewaunee County area was designated as
attainment under the 1-hour ozone NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. On April 30, 2004 (69 FR 23857), EPA
published a final rule designating and classifying areas under the 8-
hour ozone NAAQS. These designations and classifications became
effective June 15, 2004. The CAA required EPA to designate as
nonattainment any area that was violating the 8-hour ozone NAAQS based
on the three most recent years of air quality data, 2001-2003.
The CAA contains two sets of provisions, subpart 1 and subpart 2,
that address planning and control requirements for nonattainment areas.
(Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for
nonattainment areas for any pollutant, including ozone, governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment areas.
Under EPA's 8-hour ozone implementation rule, (69 FR 23951 (April
30, 2004)), an area was classified under subpart 2 based on its 8-hour
ozone design value (i.e. the 3-year average annual fourth-highest daily
maximum 8-hour average ozone concentration), if it had a 1-hour design
value at the time of designation at or above 0.121 ppm (the lowest 1-
hour design value in Table 1 of subpart 2) (69 FR 23954). All other
areas were covered under subpart 1, based upon their 8-hour design
values (69 FR 23958). The Kewaunee County area was designated as a
subpart 1, 8-hour ozone nonattainment area by EPA on April 30, 2004 (69
FR 23857, 23947) based on air quality monitoring data from 2001-2003
(69 FR 23860).
40 CFR 50.10 and 40 CFR part 50, Appendix I provide that the 8-hour
ozone standard is attained when the 3-year average of the annual
fourth-highest daily maximum 8-hour average ozone concentration is less
than or equal to 0.08 ppm, when rounded. The data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90%, and no single year has less than
75% data completeness. See 40 CFR Part 50, Appendix I, 2.3(d).
On June 12, 2007, Wisconsin requested that EPA redesignate the
Kewaunee County area to attainment for the 8-hour ozone standard. The
redesignation request included three years of complete, quality-assured
data for the period of 2004 through 2006, indicating the 8-hour NAAQS
for ozone had been attained for the Kewaunee County area. Under the
CAA, nonattainment areas may be redesignated to attainment if
sufficient complete, quality-assured data are available for the
Administrator to determine that the area has attained the standard, and
the area meets the other CAA redesignation requirements in section
107(d)(3)(E).
B. What Is the Impact of the December 22, 2006 United States Court of
Appeals Decision Regarding EPA's Phase 1 Implementation Rule?
1. Summary of Court Decision
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. 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 DC Circuit
clarified that the Phase 1 Rule was vacated only with regard to those
parts of the rule that had been successfully challenged. Therefore, the
Phase 1 Rule provisions related to classifications for areas currently
classified under subpart 2 of Title I, part D, of the Act as 8-hour
nonattainment areas, the 8 hour attainment dates and the timing for
emissions reductions needed for attainment of the 8 hour ozone NAAQS
remain effective. The June 8 decision left intact the Court's rejection
of EPA's reasons for implementing the 8-hour standard in certain
nonattainment areas under subpart 1 in lieu of subpart 2. By limiting
the vacatur, the Court let stand EPA's revocation of the 1-hour
standard and those anti-backsliding provisions of the Phase 1 Rule that
had not been successfully challenged. The June 8 decision reaffirmed
the December 22, 2006 decision that EPA had improperly failed to retain
four measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New
Source Review (NSR) requirements based on an area's 1-hour
nonattainment classification; (2) Section 185 penalty fees for 1-hour
severe or extreme nonattainment areas; (3) measures to be implemented
pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the
contingency of an area not making reasonable further progress toward
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS;
and (4) certain transportation conformity requirements for certain
types of federal actions. The June 8 decision clarified that the
Court's reference to conformity requirements was limited to requiring
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations.
This section sets forth EPA's views on the potential effect of the
Court's rulings on this proposed redesignation action. For the reasons
set forth below, EPA does not believe that the Court's rulings alter
any requirements relevant to this redesignation action so as to
preclude redesignation or prevent EPA from proposing or ultimately
finalizing this redesignation. EPA believes that the Court's December
22, 2006 and June 8, 2007 decisions impose no impediment to moving
forward with redesignation of this area to attainment, because even in
light of the Court's decisions, redesignation is appropriate under the
relevant redesignation provisions of the CAA and longstanding policies
regarding redesignation requests.
2. Requirements Under the 8-Hour Standard
With respect to the 8-hour standard, the Court's ruling rejected
EPA's reasons for classifying areas under subpart 1 for the 8-hour
standard, and remanded that matter to the Agency. Consequently, it is
possible that this area could, during a remand to EPA, be reclassified
under subpart 2. Although any future decision by EPA to classify this
area under subpart 2 might trigger additional future requirements for
the area, EPA believes that this does not mean that redesignation
cannot now go forward. This belief is based upon: (1) EPA's
longstanding policy of evaluating requirements in accordance with the
requirements due at the time the request is submitted; and, (2)
consideration of the inequity of applying retroactively any
requirements that might in the future be applied.
First, at the time the redesignation request was submitted, the
Kewaunee County area was classified under
[[Page 70258]]
subpart 1 and was obligated to meet only subpart 1 requirements. Under
EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA,
to qualify for redesignation, states requesting redesignation to
attainment must meet only the relevant SIP requirements that came due
prior to the submittal of a complete redesignation request. September
4, 1992, Calcagni memorandum (``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' Memorandum from John Calcagni,
Director, Air Quality Management Division). See also Michael Shapiro
Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7,
1995) (Redesignation of Detroit-Ann Arbor). See Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, e.g.
also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St.
Louis).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The DC Circuit has recognized the inequity in such
retroactive rulemaking. In Sierra Club v. Whitman, 285 F. 3d 63 (DC
Cir. 2002), the DC Circuit upheld a District Court's ruling refusing to
make retroactive an EPA determination of nonattainment that was past
the statutory due date. Such a determination would have resulted in the
imposition of additional requirements on the area. The Court stated:
``Although EPA failed to make the nonattainment determination within
the statutory time frame, Sierra Club's proposed solution only makes
the situation worse. Retroactive relief would likely impose large costs
on the States, which would face fines and suits for not implementing
air pollution prevention plans in 1997, even though they were not on
notice at the time.'' Id. at 68. Similarly here it would be unfair to
penalize the area by applying to it for purposes of redesignation
additional SIP requirements under subpart 2 that were not in effect at
the time it submitted its redesignation request.
3. Requirements Under the 1-Hour Standard
With respect to the 1-hour standard requirements, the Kewaunee
County area was an attainment area subject to a CAA section 175A
maintenance plan under the 1-hour standard. The DC Circuit's decisions
do not impact redesignation requests for these types of areas, except
to the extent that the Court in its June 8 decision clarified that for
those areas with 1-hour motor vehicle emissions budgets in their
maintenance plans, anti-backsliding requires that those 1-hour budgets
must be used for 8-hour conformity determinations until replaced by 8-
hour budgets. To meet this requirement, conformity determinations in
such areas must comply with the applicable requrements of EPA's
conformity regulations at 40 CFR Part 93.
With respect to the three other anti-backsliding provisions for the
1-hour standard that the Court found were not properly retained, the
Kewaunee County area is an attainment area subject to a maintenance
plan for the 1-hour standard, and the NSR, contingency measure
(pursuant to section 172(c)(9) or 182(c)(9)) and fee provision
requirements no longer apply to an area that has been redesignated to
attainment of the 1-hour standard.
Thus, the decision in South Coast Air Quality Management Dist.
should not alter requirements that would preclude EPA from finalizing
the redesignation of this area.
IV. What Are the Criteria for Redesignation?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) allows for
redesignation provided that: (1) The Administrator determines that the
area has attained the applicable NAAQS; (2) the Administrator has fully
approved the applicable implementation plan for the area under section
110(k); (3) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable SIP and applicable
federal air pollutant control regulations and other permanent and
enforceable reductions; (4) the Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175A; and, (5) the state containing such area has met all requirements
applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum
from William G. Laxton, Director Technical Support Division, June 18,
1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T.
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or
After November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting
Director, Air Quality Management Division, to Air Division Directors,
Regions 1-10, dated November 30, 1993.
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.
[[Page 70259]]
V. Why Is EPA Proposing To Take These Actions?
On June 12, 2007, Wisconsin requested redesignation of the Kewaunee
County area to attainment for the 8-hour ozone standard. EPA believes
that the area has attained the standard and has met the requirements
for redesignation set forth in section 107(d)(3)(E) of the CAA.
VI. What Is the Effect of These Actions?
Approval of the redesignation request would change the official
designation of the area for the 8-hour ozone NAAQS found at 40 CFR part
81. It would also incorporate into the Wisconsin SIP a plan for
maintaining the 8-hour ozone NAAQS through 2018. The maintenance plan
includes contingency measures to remedy future violations of the 8-hour
NAAQS. It also establishes MVEBs of 0.43 and 0.32 tons per day (tpd)
VOC and 0.80 and 0.47 tpd NOX for the years 2012 and 2018,
respectively.
VII. What Is EPA's Analysis of the Request?
A. Attainment Determination and Redesignation
EPA is proposing to make a determination that the Kewaunee County
area has attained the 8-hour ozone standard and that the area has met
all other applicable section 107(d)(3)(E) redesignation criteria. The
basis for EPA's determination is as follows:
1. The Area Has Attained the 8-Hour Ozone NAAQS (Section
107(d)(3)(E)(i))
EPA is proposing to make a determination that the Kewaunee County
area has attained the 8-hour ozone NAAQS. For ozone, an area may be
considered to be attaining the 8-hour ozone NAAQS if there are no
violations, as determined in accordance with 40 CFR 50.10 and part 50,
Appendix I, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain this standard,
the 3-year average of the fourth-highest daily maximum 8-hour average
ozone concentrations measured at each monitor within an area over each
year must not exceed 0.08 ppm. Based on the rounding convention
described in 40 CFR part 50, Appendix I, the standard is attained if
the design value is 0.084 ppm or below. The data must be collected and
quality-assured in accordance with 40 CFR part 58, and recorded in the
Aerometric Information Retrieval System (AIRS). The monitors generally
should have remained at the same location for the duration of the
monitoring period required for demonstrating attainment.
WDNR submitted ozone monitoring data for the 2004 to 2006 ozone
seasons. The WDNR quality-assured the ambient monitoring in accordance
with 40 CFR 58.10, and recorded it in the AIRS database, thus making
the data publicly available. The data meet the completeness criteria in
40 CFR 50, Appendix I, which requires a minimum completeness of 75
percent annually and 90 percent over each three year period.
Preliminary 2007 monitoring data show that the area continues to meet
the 8-hour ozone NAAQS. Monitoring data is presented in Table 1 below.
Table 1.--Kewaunee County Annual 4th High Daily Maximum 8-Hour Ozone Concentrations and 3-Year Average of 4th
High Daily Maximum 8-Hour Ozone Concentrations.
----------------------------------------------------------------------------------------------------------------
2004-2006
2004 4th 2005 4th 2006 4th average
Monitor high high high 4th high
(ppm) (ppm) (ppm) (ppm)
----------------------------------------------------------------------------------------------------------------
55-061-0002....................................................... 0.073 0.088 0.077 0.079
----------------------------------------------------------------------------------------------------------------
In addition, as discussed below with respect to the maintenance
plans, WDNR has committed to continue monitoring ozone levels in
Kewaunee County and to discuss with EPA any changes in the siting that
may become necessary. WDNR will continue to quality assure monitoring
data in accordance with 40 CFR part 58 and enter all data into the Air
Quality System on a timely basis in accordance with federal guidelines.
In summary, EPA believes that the data submitted by Wisconsin provide
an adequate demonstration that the Kewaunee County area has attained
the 8-hour ozone NAAQS.
2. The Area Has Met All Applicable Requirements Under Section 110 and
Part D; and the Area Has a Fully Approved SIP Under Section 110(k)
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
We have determined that Wisconsin has met all currently applicable
SIP requirements for purposes of redesignation for the Kewaunee County
area under Section 110 of the CAA (general SIP requirements). We have
also determined that the Wisconsin SIP meets all SIP requirements
currently applicable for purposes of redesignation under part D of
Title I of the CAA (requirements specific to subpart 1 nonattainment
areas), in accordance with section 107(d)(3)(E)(v). In addition, we
have determined that the Wisconsin SIP is fully approved with respect
to all applicable requirements for purposes of redesignation, in
accordance with section 107(d)(3)(E)(ii). In making these
determinations, we have ascertained what SIP requirements are
applicable to the area for purposes of redesignation, and have
determined that the portions of the SIP meeting these requirements are
fully approved under section 110(k) of the CAA. As discussed more fully
below, SIPs must be fully approved only with respect to currently
applicable requirements of the CAA.
a. The Kewaunee County Area Has Met All Applicable Requirements Under
Section 110 and Part D of the CAA
The September 4, 1992 Calcagni memorandum (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) of the CAA. Under this interpretation, a state and the
area it wishes to redesignate must meet the relevant CAA requirements
that are due prior to the state's submittal of a complete redesignation
request for the area. See also the September 17, 1993 Michael Shapiro
memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS).
Applicable requirements of the CAA that come due subsequent to the
state's submittal of a complete request remain applicable
[[Page 70260]]
until a redesignation to attainment is approved, but are not required
as a prerequisite to redesignation. See section 175A(c) of the CAA.
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424,
25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis
area to attainment of the 1-hour ozone NAAQS).
General SIP requirements. Section 110(a) of title I of the CAA
contains the general requirements for a SIP. Section 110(a)(2) provides
that the implementation plan submitted by a state must have been
adopted by the state after reasonable public notice and hearing, and
that, among other things, it includes enforceable emission limitations
and other control measures, means or techniques necessary to meet the
requirements of the CAA; provides for establishment and operation of
appropriate devices, methods, systems and procedures necessary to
monitor ambient air quality; provides for implementation of a source
permit program to regulate the modification and construction of any
stationary source within the areas covered by the plan; includes
provisions for the implementation of part C, Prevention of Significant
Deterioration (PSD) and part D, NSR permit programs; includes criteria
for stationary source emission control measures, monitoring, and
reporting; includes provisions for air quality modeling; and provides
for public and local agency participation in planning and emission
control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures
to prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants (NOX SIP Call,\1\ Clean Air Interstate Rule
(CAIR) (70 FR 25162)). However, the section 110(a)(2)(D) requirements
for a state are not linked with a particular nonattainment area's
designation and classification. EPA believes that the requirements
linked with a particular nonattainment area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. When the transport SIP submittal requirements
are applicable to a state, they will continue to apply to the state
regardless of the attainment designation of any one particular area in
the state. Therefore, we believe that these requirements should not be
construed to be applicable requirements for purposes of redesignation.
Further, we believe that the other section 110 elements described above
that are not connected with nonattainment plan submissions and not
linked with an area's attainment status are also not applicable
requirements for purposes of redesignation. A state remains subject to
these requirements after an area is redesignated to attainment. We
conclude that only the section 110 and part D requirements which are
linked with a particular area's designation and classification are the
relevant measures which we may consider in evaluating a redesignation
request. This approach is consistent with EPA's existing policy on
applicability of conformity and oxygenated fuels requirements for
redesignation purposes, as well as with section 184 ozone transport
requirements. See Reading, Pennsylvania, proposed and final rulemakings
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997);
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 20458, May 7, 1996);
and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995).
See also the discussion on this issue in the Cincinnati ozone
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh ozone
redesignation (66 FR 50399, October 19, 2001).
---------------------------------------------------------------------------
\1\ On October 27, 1998 (63 FR 57356), EPA issued a
NOX SIP call requiring the District of Columbia and 22
states to reduce emissions of NOX in order to reduce the
transport of ozone and ozone precursors. Wisconsin was not included
in EPA's NOX SIP call.
---------------------------------------------------------------------------
As discussed above, we believe that section 110 elements which are
not linked to the area's nonattainment status are not applicable for
purposes of redesignation. Because there are no section 110
requirements linked to the part D requirements for 8-hour ozone
nonattainment areas that have become due, as explained below, there are
no part D requirements applicable for purposes of redesignation under
the 8-hour standard.
Part D Requirements. EPA has determined that the Wisconsin SIP
meets applicable SIP requirements under part D of the CAA, since no
requirements applicable for purposes of redesignation became due for
the 8-hour ozone standard prior to WDNR's submission of the
redesignation request for the Kewaunee County area. Under part D, an
area's classification determines the requirements to which it will be
subject. Subpart 1 of part D, found in sections 172-176 of the CAA,
sets forth the basic nonattainment requirements applicable to all
nonattainment areas. Section 182 of the CAA, found in subpart 2 of part
D, establishes additional specific requirements depending on the area's
nonattainment classification. The Kewaunee County area was classified
as a subpart 1 nonattainment area, and, therefore, subpart 2
requirements do not apply.
Part D, subpart 1 applicable SIP requirements. For purposes of
evaluating these redesignation requests, the applicable part D, subpart
1 SIP requirements for the Kewaunee County area are contained in
sections 172(c)(1)-(9). A thorough discussion of the requirements
contained in section 172 can be found in the General Preamble for
Implementation of Title I (57 FR 13498, April 16, 1992).
No requirements applicable for purposes of redesignation under part
D became due prior to submission of the redesignation request, and,
therefore, none are applicable to the areas for purposes of
redesignation. Since the State of Wisconsin has submitted a complete
ozone redesignation request for the Kewaunee County area prior to the
deadline for any submissions required for purposes of redesignation, we
have determined that these requirements do not apply to the Kewaunee
County area for purposes of redesignation.
Furthermore, EPA has determined that, since PSD requirements will
apply after redesignation, areas being redesignated need not comply
with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
NAAQS without part D NSR. A more detailed rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled, ``Part D New
Source Review Requirements for Areas Requesting Redesignation to
Attainment.'' Wisconsin has demonstrated that the area to be
redesignated will be able to maintain the standard without part D NSR
in effect; therefore, EPA concludes that the State need not have a
fully approved part D NSR program prior to approval of the
redesignation request. The State's PSD program will become effective in
the Kewaunee County area upon redesignation to attainment. See
rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995);
Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996);
Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids,
Michigan (61 FR 31834-31837, June 21, 1996).
Section 176 conformity requirements. Section 176(c) of the CAA
requires states to establish criteria and
[[Page 70261]]
procedures to ensure that federally-supported or funded activities,
including highway projects, conform to the air quality planning goals
in the applicable SIPs. The requirement to determine conformity applies
to transportation plans, programs and projects developed, funded or
approved under title 23 of the U.S. Code and the Federal Transit Act
(transportation conformity) as well as to all other federally-supported
or funded projects (general conformity). State conformity revisions
must be consistent with federal conformity regulations relating to
consultation, enforcement and enforceability, which EPA promulgated
pursuant to CAA requirements.
EPA believes that it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) for two reasons. First, the
requirement to submit SIP revisions to comply with the conformity
provisions of the CAA continues to apply to areas after redesignation
to attainment since such areas would be subject to a section 175A
maintenance plan. Second, EPA's federal conformity rules require the
performance of conformity analyses in the absence of federally-approved
state rules. Therefore, because areas are subject to the conformity
requirements regardless of whether they are redesignated to attainment
and, because they must implement conformity under federal rules if
state rules are not yet approved, EPA believes it is reasonable to view
these requirements as not applying for purposes of evaluating a
redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001),
upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec.
7, 1995) (Tampa, Florida).
EPA approved Wisconsin's general and transportation conformity SIPs
on July 29, 1996 (61 FR 39329) and August 27, 1996 (61 FR 43970),
respectively. Wisconsin has submitted onroad motor vehicle budgets for
the Kewaunee County area of 0.43 and 0.32 tpd VOC and 0.80 and 0.47 tpd
NOX for the years 2012 and 2018, respectively. The area must
use the MVEBs from the maintenance plan in any conformity determination
that is effective on or after the effective date of the maintenance
plan approval. Thus, the Kewaunee County area has satisfied all
applicable requirements under section 110 and part D of the CAA.
b. The Kewaunee County Area Has a Fully Approved Applicable SIP Under
Section 110(k) of the CAA
EPA has fully approved the Wisconsin SIP for the Kewaunee County
area under section 110(k) of the CAA for all requirements applicable
for purposes of redesignation. EPA may rely on prior SIP approvals in
approving a redesignation request (See the September 4, 1992 John
Calcagni memorandum, page 3, Southwestern Pennsylvania Growth Alliance
v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), Wall v. EPA, 265
F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve
in conjunction with a redesignation action. See 68 FR 25413, 25426 (May
12, 2003). Since the passage of the CAA of 1970, Wisconsin has adopted
and submitted, and EPA has fully approved, provisions addressing the
various required SIP elements applicable to the Kewaunee County area
under the 1-hour ozone standard. No Kewaunee County area SIP provisions
are currently disapproved, conditionally approved, or partially
approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable
Reductions in Emissions Resulting From Implementation of the SIP and
Applicable Federal Air Pollution Control Regulations and Other
Permanent and Enforceable Reductions (Section 107(d)(3)(E)(iii))
EPA finds that Wisconsin has demonstrated that the observed air
quality improvement in the Kewaunee County area is due to permanent and
enforceable reductions in emissions resulting from implementation of
the SIP, federal measures, and other state-adopted measures.
In making this demonstration, the State has calculated the change
in emissions between 2002, one of the years used to designate the area
as nonattainment, and 2005, one of the years the Kewaunee County area
monitored attainment. The reduction in emissions and the corresponding
improvement in air quality over this time period can be attributed to a
number of regulatory control measures that Kewaunee County and upwind
areas have implemented in recent years. The Kewaunee County area is
impacted by the transport of ozone and ozone precursors from upwind
areas. Therefore, local controls as well as controls implemented in
upwind areas are relevant to the improvement in air quality in the
Kewaunee County area.
a. Permanent and Enforceable Controls Implemented
The following is a discussion of permanent and enforceable measures
that have been implemented in the areas:
NOX rules. Wisconsin adopted NOX controls for
large existing sources and established emissions standards for new
sources as part of their rate of progress plan under the 1-hour ozone
standard.
Federal Emission Control Measures. Reductions in VOC and
NOX emissions have occurred statewide and in upwind areas as
a result of federal emission control measures, with additional emission
reductions expected to occur in the future. Federal emission control
measures include: Maximum Achievable Control Technology Standards, the
National Low Emission Vehicle (NLEV) program, Tier 2 emission standards
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards,
and heavy-duty diesel engine standards. In addition, in 2004, EPA
issued the Clean Air Non-road Diesel Rule (69 FR 38958 (July 29,
2004)). EPA expects this rule to reduce off-road diesel emissions
through 2010, with emission reductions starting in 2008.
Control Measures in Upwind Areas. On October 27, 1998 (63 FR
57356), EPA issued a NOX SIP call requiring the District of
Columbia and 22 states to reduce emissions of NOX. The
reduction in NOX emissions has resulted in lower
concentrations of transported ozone entering the Kewaunee County area.
Emission reductions resulting from regulations developed in response to
the NOX SIP call are permanent and enforceable.
b. Emission Reductions
Wisconsin is using 2002 for the nonattainment inventory and 2005,
one of the years used to demonstrate monitored attainment of the NAAQS,
for the attainment inventory. WDNR prepared comprehensive inventories
for both 2002 and 2005 for Kewaunee County as part of a larger
inventory effort. Point source inventories were developed using source
specific data. Area source emissions were estimated based on various
activity data compiled by the Census Bureau, the Energy Information
Administration, the Bureau of Economic Analysis, and several Wisconsin
State agencies. Nonroad mobile emissions were generated using EPA's
National Mobile Inventory Model (NMIM) and adding emissions estimates
for aircraft, commercial marine vessels, and railroads, three nonroad
categories not included in NMIM. Onroad mobile
[[Page 70262]]
emissions were calculated using MOBILE6.2.
Using the inventories described above, Wisconsin's submittal
documents changes in VOC and NOX emissions from 2002 to 2005
for the Kewaunee County area. Because Kewaunee County is impacted by
transport, WDNR also documented emissions reductions for the upwind
Wisconsin areas of Milwaukee-Racine, Sheboygan, and Manitowoc County.
Emissions data are shown in Tables 3 through 5 below.
Table 3.--VOC and NOX Emissions for Nonattainment Year 2002 (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kewaunee County Milwaukee-Racine Sheboygan Manitowoc County Wisconsin upwind
-------------------------------------------------------------------------------- areas total
-------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point............................................... 0.3 0.05 14.7 114.9 2.5 26.1 1.6 2.9 18.8 143.9
Area................................................ 1.3 0.1 120.6 12.1 10.9 0.9 5.1 0.4 136.6 13.4
Nonroad............................................. 1.7 2.1 62.1 52.2 5.6 4.5 3.7 4.2 71.4 60.9
Onroad.............................................. 0.8 1.2 45.4 101.6 4.1 8.2 3.6 7.4 53.1 117.2
---------------------------------------------------------------------------------------------------
Total........................................... 4.1 3.5 242.8 280.8 23.1 39.7 14.0 14.9 279.9 335.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4.--VOC and NOX Emissions for Attainment Year 2005 (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kewaunee County Milwaukee-Racine Sheboygan Manitowoc County Wisconsin upwind
-------------------------------------------------------------------------------- areas total
-------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point............................................... 0.2 0.01 13.8 68.6 2.3 13.2 1.3 3.2 17.4 85.0
Area................................................ 1.3 0.1 107.5 13.4 7.8 1.1 4.9 0.5 120.2 15.0
Nonroad............................................. 1.6 1.7 54.0 49.1 5.4 4.1 3.4 3.8 62.8 57.0
Onroad.............................................. 0.6 1.2 36.0 86.2 2.9 7.8 2.6 7.4 41.5 101.4
---------------------------------------------------------------------------------------------------
Total........................................... 3.7 3.0 211.3 217.3 18.4 26.2 12.2 14.9 241.9 258.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5. Comparison of 2002 and 2005 VOC and NOX Emissions (tpd)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Kewaunee County Wisconsin upwind areas total
-----------------------------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX
Sector -----------------------------------------------------------------------------------------------------------------------------------
Net change Net change Net change Net change
2002 2005 (2002-2005) 2002 2005 (2002-2005) 2002 2005 (2002-2005) 2002 2005 (2002-2005)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Point....................................................... 0.3 0.2 -0.1 0.05 0.01 -0.04 18.8 17.4 -1.4 143.9 85.0 -58.9
Area........................................................ 1.3 1.3 0.0 0.1 0.1 0.0 136.6 120.2 -16.4 13.4 15.0 1.6
Nonroad..................................................... 1.7 1.6 -0.1 2.1 1.7 -0.4 71.4 62.8 -8.6 60.9 57.0 -3.9
Onroad...................................................... 0.8 0.6 -0.2 1.2 1.2 0.0 53.1 41.5 -11.6 117.2 101.4 -15.8
-----------------------------------------------------------------------------------------------------------------------------------
Total................................................... 4.1 3.7 -0.4 3.45 3.01 -0.4 279.9 241.9 -38.0 335.4 258.4 -77.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5 shows that the Kewaunee County area reduced VOC emissions
by 0.4 tpd and NOX emissions by 0.4 tpd between 2002 and
2005. In addition, upwind areas in Wisconsin reduced VOC emissions by
38.0 tpd and NOX emissions by 77.0 tpd between 2002 and
2005. Based on the information summarized above, Wisconsin has
adequately demonstrated that the improvement in air quality is due to
permanent and enforceable emissions reductions.
4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section
175a of the CAA (Section 107(d)(3)(E)(iv))
In conjunction with its request to redesignate the Kewaunee County
nonattainment area to attainment status, Wisconsin submitted a SIP
revision to provide for the maintenance of the 8-hour ozone NAAQS in
the area through 2018.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the required elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. Under section 175A, the plan must demonstrate continued
attainment of the applicable NAAQS for at least ten years after the
Administrator approves a redesignation to attainment. Eight years after
the redesignation, the state must submit a revised maintenance plan
which demonstrates that attainment will continue to be maintained for
ten years following the initial ten-year maintenance period. To address
the possibility of future NAAQS violations, the maintenance plan must
contain contingency measures with a schedule for implementation as EPA
deems necessary to assure prompt correction of any future 8-hour ozone
violations.
The September 4, 1992, John Calcagni memorandum provides additional
guidance on the content of a
[[Page 70263]]
maintenance plan. The memorandum clarifies that an ozone maintenance
plan should address the following items: The attainment VOC and
NOX emissions inventories, a maintenance demonstration
showing maintenance for the ten years of the maintenance period, a
commitment to maintain the existing monitoring network, factors and
procedures to be used for verification of continued attainment of the
NAAQS, and a contingency plan to prevent or correct future violations
of the NAAQS.
b. Attainment Inventory
The WDNR developed an emissions inventory for 2005, one of the
years Wisconsin used to demonstrate monitored attainment of the 8-hour
NAAQS, as described above. The attainment level of emissions is
summarized in Table 4, above.
c. Demonstration of Maintenance
Wisconsin submitted with the redesignation request a revision to
the 8-hour ozone SIP to include a maintenance plan for the Kewaunee
County area, in compliance with section 175A of the CAA. This
demonstration shows maintenance of the 8-hour ozone standard through
2018 by assuring that current and future emissions of VOC and
NOX for the Kewaunee County area remain at or below
attainment year emission levels. A maintenance demonstration need not
be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001),
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR
53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May
12, 2003).
Wisconsin is using projected emissions inventories for the years
2012 and 2018 to demonstrate maintenance. Point and area source
emissions were projected from the 2005 base year using growth factors.
Nonroad mobile emissions were generated for 2012 and 2018 using NMIM
and grown emissions for aircraft, commercial marine vessels, and
railroads were added in. Onroad mobile source emissions projections
were created using MOBILE6.2. Emissions estimates are presented in
Table 6 below.
Table 6.--Kewaunee County: Comparison of 2005-2018 VOC and NOX Emissions (tpd)
----------------------------------------------------------------------------------------------------------------
VOC NOX
---------------------------------------------------------------------------------
Sector Net Net
2005 2012 2018 change 2005 2012 2018 change
2005-2018 2005-2018
----------------------------------------------------------------------------------------------------------------
Point......................... 0.2 0.3 0.3 0.10 0.01 0.01 0.0 -0.01
Area.......................... 1.3 1.4 1.3 0.00 0.1 0.1 0.1 0.00
Nonroad....................... 1.6 1.3 1.2 -0.40 1.7 1.5 1.4 -0.30
Onroad........................ 0.6 0.43 0.32 -0.28 1.2 0.80 0.47 -0.73
---------------------------------------------------------------------------------
Total..................... 3.7 3.43 3.12 -0.58 3.01 2.41 1.97 -1.04
----------------------------------------------------------------------------------------------------------------
The emission projections show that WDNR does not expect emissions
in the Kewaunee County area to exceed the level of the 2005 attainment
year inventory during the maintenance period. In the Kewaunee County
area, WDNR projects that VOC and NOX emissions will decrease
by 0.58 tpd and 1.04 tpd, respectively.
As part of its maintenance plan, the State elected to include a
``safety margin'' for the area. A ``safety margin'' is the difference
between the attainment level of emissions (from all sources) and the
projected level of emissions (from all sources) in the maintenance plan
which continues to demonstrate attainment of the standard. The
attainment level of emissions is the level of emissions during one of
the years in which the area met the NAAQS. The Kewaunee County area
attained the 8-hour ozone NAAQS during the 2004-2006 time period.
Wisconsin used 2005 as the attainment level of emissions for the area.
In the maintenance plan, WDNR projected emission levels for 2018. For
Kewaunee County, the emissions from point, area, nonroad, and mobile
sources in 2005 equaled 3.7 tpd of VOC. WDNR projected VOC emissions
for the year 2018 to be 3.12 tpd of VOC. The SIP submission
demonstrates that the Kewaunee County area will continue to maintain
the standard with emissions at this level. The safety margin for VOC is
calculated to be the difference between these amounts or, in this case,
0.58 tpd of VOC for 2018. By this same method, 1.04 tpd (i.e., 3.01 tpd
less 2.41 tpd) is the safety margin for NOX for 2018. The
safety margin, or a portion thereof, can be allocated to any of the
source categories, as long as the total attainment level of emissions
is maintained.
d. Monitoring Network
Wisconsin currently operates one ozone monitor in Kewaunee County.
Wisconsin has committed to continue to operate and maintain an approved
ozone monitoring network in Kewaunee. WDNR has also committed to
consult with EPA regarding any changes in siting that may become
necessary in the future. WDNR will continue to quality assure
monitoring data in accordance with 40 CFR part 58 and enter all data
into the Air Quality System on a timely basis in accordance with
federal guidelines.
e. Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the Kewaunee County area
depends, in part, on the State's efforts toward tracking indicators of
continued attainment during the maintenance period. Wisconsin's plan
for verifying continued attainment of the 8-hour standard in the
Kewaunee County area consists of plans to continue ambient ozone
monitoring in accordance with the requirements of 40 CFR part 58. The
State will also evaluate future VOC and NOX emissions
inventories for increases over 2005 levels.
f. Contingency Plan
The contingency plan provisions are designed to promptly correct or
prevent a violation of the NAAQS that might occur after redesignation
of an area to attainment. Section 175A of the CAA requires that a
maintenance plan include such contingency measures as EPA deems
necessary to assure that the state will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the contingency measures to be adopted, a schedule and
procedure for adoption and implementation of the contingency measures,
and a time limit for action by
[[Page 70264]]
the state. The state should also identify specific indicators to be
used to determine when the contingency measures need to be adopted and
implemented. The maintenance plan must include a requirement that the
state will implement all measures with respect to control of the
pollutant(s) that were contained in the SIP before redesignation of the
area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Wisconsin has adopted a
contingency plan for the Kewaunee area to address possible future ozone
air quality problems. A contingency plan response will be triggered
whenever a three-year average fourth-high monitored value of 0.085 ppm
or greater is monitored within the maintenance area. When a response is
triggered, WDNR will determine whether a special event, malfunction, or
non-compliance with permit conditions or rule requirements resulted in
high ozone concentrations in order to immediately address needed
corrective measures. The WDNR will also review meteorological
conditions during high ozone episodes. The State will conduct this
review within 6 months following the close of the ozone season. If the
high values were found not to be prompted by an exceptional event,
malfunction, or non-compliance with a permit condition or rule
requirement, WDNR will evaluate existing but not fully implemented, on-
the way, and, if necessary, new control measures necessary to return
the area to attainment within 18 months. EPA is interpreting this
commitment to mean that the measure will be in place within 18 months.
In addition, it is EPA's understanding that to acceptably address a
violation of the standard, existing and on-the way control measures
must be in excess of emissions reductions included in the projected
maintenance inventories.
In its maintenance plan, WDNR included the following list of
potential contingency measures:
i. Broaden the application of the NOX RACT program by
including a larger geographic area, and/or including sources with
potential emissions of 50 tons per year, and/or increasing the cost-
effectiveness thresholds utilized as a basis for Wisconsin's
NOX RACT Program; and/or
ii. Broaden the geographic area for the idling control program for
mobile sources targeting diesel vehicles; and/or
iii. Reduced VOC content in Architectural, Industrial and
Maintenance coatings rule; and/or
iv. Reduced VOC content in commercial and consumer products; and/or
v. Reduced VOC content from federal motor vehicle toxics rule; and/
or
Control measures identified as RACM in a regional attainment
demonstration for ozone control.
g. Provisions for Future Updates of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, Wisconsin commits to
submi
