Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of the Milwaukee-Racine and Sheboygan Areas to Attainment for 1997 8-Hour Ozone Standard, 6727-6743 [2012-2989]
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Federal Register / Vol. 77, No. 27 / Thursday, February 9, 2012 / Proposed Rules
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA lacks the discretionary authority
to address environmental justice in this
proposed action. In reviewing SIP
submissions, EPA’s role is to approve or
disapprove state choices, based on the
criteria of the CAA. Accordingly, this
action merely proposes to disapprove
certain State requirements for inclusion
into the SIP under section 110 and
subchapter I, part D of the CAA and will
not in-and-of itself create any new
requirements. Accordingly, it does not
provide EPA with the discretionary
authority to address, as appropriate,
disproportionate human health or
environmental effects, using practicable
and legally permissible methods, under
Executive Order 12898.
K. Statutory Authority
The statutory authority for this action
is provided by section 110 of the CAA,
as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 30, 2012.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2012–2902 Filed 2–8–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
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[EPA–R05–OAR–2009–0730; FRL–9629–2]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; Wisconsin; Redesignation
of the Milwaukee-Racine and
Sheboygan Areas to Attainment for
1997 8-Hour Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
requests from the Wisconsin
SUMMARY:
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Department of Natural Resources
(WDNR) to redesignate the MilwaukeeRacine and Sheboygan areas to
attainment for the 1997 8-hour ozone
standard, because the requests meet the
statutory requirements for redesignation
under the Clean Air Act (CAA or Act).
The Milwaukee-Racine area includes
Milwaukee, Ozaukee, Racine,
Washington, Waukesha, and Kenosha
Counties. The Sheboygan area includes
Sheboygan County. WDNR submitted
these requests on September 11, 2009,
and supplemented the submittal on
November 16, 2011. This proposed
approval also involves several related
actions. EPA is proposing to approve, as
revisions to the Wisconsin State
Implementation Plan (SIP), the state’s
plans for maintaining the 1997 8-hour
ozone National Ambient Air Quality
Standard (NAAQS or standard) through
2022 in the above-mentioned areas. EPA
is also proposing to approve the 2005
comprehensive emissions inventories
for the Milwaukee-Racine and
Sheboygan areas as meeting the
requirements of the CAA. Finally, EPA
finds adequate and is proposing to
approve the state’s 2015 and 2022 Motor
Vehicle Emission Budgets (MVEBs) for
the Milwaukee-Racine and Sheboygan
areas.
Comments must be received on
or before March 12, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2009–0730, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: Aburano.Douglas@epa.gov.
3. Fax: (312) 408–2279.
4. Mail: Doug Aburano, Chief,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
77 West Jackson Boulevard, Chicago,
Illinois 60604.
5. Hand delivery: Doug Aburano,
Chief, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 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–2009–
0730. EPA’s policy is that all comments
DATES:
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6727
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov, your
email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses. For additional instructions
on submitting comments, go to Section
I of this document, ‘‘What Should I
Consider as I Prepare My Comments for
EPA?’’
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone
Kathleen D’Agostino, Environmental
Engineer, at (312) 886–1767 before
visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Kathleen D’Agostino, Environmental
Engineer, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), U.S. Environmental
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Federal Register / Vol. 77, No. 27 / Thursday, February 9, 2012 / Proposed Rules
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 actions is EPA proposing to take?
III. What is the background for these actions?
A. What is the general background
information?
B. What are the impacts of the December
22, 2006, and June 8, 2007, United States
Court of Appeals decisions regarding
EPA’s Phase 1 Implementation Rule?
IV. What are the criteria for redesignation to
attainment?
V. What is EPA’s analysis of the State’s
request?
A. Redesignation
B. Adequacy of Wisconsin’s MVEBs
C. 2005 Comprehensive Emissions
Inventory
VI. Summary of Actions
VII. Statutory and Executive Order Reviews
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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—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 actions is EPA proposing to
take?
EPA is proposing to determine that
the Milwaukee-Racine and Sheboygan
ozone nonattainment areas have met the
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requirements for redesignation under
section 107(d)(3)(E) of the CAA. EPA is
thus proposing to approve Wisconsin’s
requests to change the legal designations
of the Milwaukee-Racine and
Sheboygan areas from nonattainment to
attainment for the 1997 8-hour ozone
NAAQS. EPA is also proposing to
approve Wisconsin’s maintenance plan
SIP revisions for the Milwaukee-Racine
and Sheboygan areas (such approval
being one of the CAA criteria for
redesignation to attainment status). The
maintenance plans are designed to keep
the Milwaukee-Racine and Sheboygan
areas in attainment of the ozone NAAQS
through 2022. EPA is proposing to
approve the 2005 comprehensive
emissions inventories for the
Milwaukee-Racine and Sheboygan areas
as meeting the requirements of section
182(a)(1) of the CAA. Finally, EPA is
proposing to approve the newlyestablished 2015 and 2022 MVEBs for
the Milwaukee-Racine and Sheboygan
areas. The adequacy comment period for
the MVEBs began on December 6, 2011,
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
January 5, 2012. EPA did not receive
any requests for this submittal, or
adverse comments on this submittal
during the adequacy comment period.
See section V. B. of this rulemaking,
‘‘Adequacy of Wisconsin’s MVEBs,’’ for
further explanation on this process.
Therefore, EPA finds adequate, and is
proposing to approve, the state’s 2015
and 2022 MVEBs for use in future
transportation conformity analyses for
the areas.
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.
The CAA establishes a process for air
quality management through the
NAAQS. Before promulgation of the
8-hour standard, the ozone NAAQS was
based on a 1-hour standard. On
November 6, 1991 (56 FR 56693 and
56852), the Milwaukee-Racine and
Sheboygan areas were designated as
severe and moderate nonattainment
areas, respectively, under the 1-hour
ozone NAAQS. The Sheboygan area was
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subsequently redesignated to attainment
of the 1-hour standard on August 26,
1996 (61 FR 43675). Although the
Milwaukee-Racine area was monitoring
attainment of the 1-hour ozone standard
by the end of the 2005 ozone season, at
the time EPA revoked the 1-hour ozone
NAAQS, on June 15, 2005, the
Milwaukee-Racine area was never
redesignated as attainment under the
1-hour ozone NAAQS.
On July 18, 1997 (62 FR 38856), EPA
promulgated an 8-hour ozone standard
of 0.08 parts per million parts (ppm). 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. EPA designated 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 implementation rule for
the 1997 8-hour ozone standard, (69 FR
23951, April 30, 2004), an area was
classified under subpart 2 based on its
8-hour ozone design value,1 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 Milwaukee-Racine and
Sheboygan areas were designated as
subpart 2, 8-hour ozone moderate
nonattainment areas by EPA on April
30, 2004 (69 FR 23857 and 23947) based
on air quality monitoring data from
2001–2003 (69 FR 23860).
40 CFR 50.10 and appendix I of 40
CFR part 50 provide that the 8-hour
ozone standard is attained when the
three-year average of the annual fourthhighest 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
1 To determine the 8-hour design value for an
area, the three-year average of the fourth-highest
daily maximum 8-hour average ozone concentration
is calculated for each monitor within an area. The
highest three-year average is the design value for
the area.
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valid ambient monitoring data is greater
than 90 percent, and no single year has
less than 75 percent data completeness.
See 40 CFR part 50, appendix I, 2.3(d).
WDNR submitted requests to
redesignate the Milwaukee-Racine and
Sheboygan areas to attainment for the
1997 8-hour ozone standard on
September 11, 2009, and supplemented
the request on November 16, 2011.
Complete, quality-assured and certified
data for the 2006–2008, 2007–2009, and
2008–2010 time periods indicate the
8-hour NAAQS for ozone, as
promulgated in 1997, has been attained
for the Milwaukee-Racine and
Sheboygan areas. In addition, available
monitoring data for 2011 continue to
show the areas in attainment of the
standard. 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).
On March 27, 2008 (73 FR 16436),
EPA promulgated a revised 8-hour
ozone standard of 0.075 ppm. EPA has
not yet designated areas under the 2008
standard. The actions addressed in this
proposed rulemaking relate only to the
1997 8-hour ozone standard.
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B. What are the impacts of the
December 22, 2006, and June 8, 2007,
United States Court of Appeals
decisions regarding EPA’s Phase 1
Implementation Rule?
1. Summary of Court Decision
On December 22, 2006, in South
Coast Air Quality Management Dist. v.
EPA, the U.S. Court of Appeals for the
District of Columbia (DC Circuit)
vacated EPA’s Phase 1 Implementation
Rule for the 1997 8-hour Ozone
Standard (69 FR 23951, April 30, 2004).
472 F.3d 882 (D.C. Cir. 2006). On June
8, 2007, 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.
Id., Docket No. 04 1201. Therefore,
several provisions of the Phase 1 Rule
remain effective: Provisions related to
classifications for areas currently
classified under subpart 2 of title I, part
D, of the CAA 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. The June 8, 2007,
decision also left intact the court’s
rejection of EPA’s reasons for
implementing the 8-hour standard in
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certain nonattainment areas under
subpart 1 in lieu of subpart 2. By
limiting the vacatur, the D.C. Circuit 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, 2007, decision reaffirmed
the December 22, 2006, decision that
EPA had improperly failed to retain four
measures required for 1-hour
nonattainment areas under the antibacksliding 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, 2007, 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
D.C. Circuit’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
Ozone Standard
With respect to the 1997 8-hour
standard, the Milwaukee-Racine and
Sheboygan areas are classified under
subpart 2. The June 8, 2007, opinion
clarifies that the court did not vacate the
Phase 1 Rule’s provisions with respect
to classifications for areas under subpart
2. The court’s decision therefore
upholds EPA’s classifications for those
areas classified under subpart 2 for the
8-hour ozone standard.
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3. Requirements Under the 1-Hour
Ozone Standard
a. Milwaukee-Racine Area
In its June 8, 2007 decision the D.C.
Circuit limited its vacatur so as to
uphold those provisions of the antibacksliding requirements that were not
successfully challenged. Therefore, an
area must meet the anti-backsliding
requirements which apply by virtue of
the area’s classification for the 1-hour
ozone standard. See 40 CFR 51.900, et
seq.; 70 FR 30592, 30604 (May 26,
2005). As set forth in more detail below,
the area must also address four
additional anti-backsliding provisions
identified by the court in its decisions.
The anti-backsliding provisions at 40
CFR 51.905(a)(1) prescribe 1-hour ozone
standard requirements that continue to
apply after revocation of the 1-hour
ozone NAAQS to former 1-hour ozone
nonattainment areas. 40 CFR
51.905(a)(1)(i) provides that:
The area remains subject to the obligation
to adopt and implement the applicable
requirements as defined in section 51.900(f),
except as provided in paragraph (a)(1)(iii) of
this section, and except as provided in
paragraph (b) of this section.
40 CFR 51.900(f), as amended by 70 FR
30592, 30604 (May 26, 2005), states that:
Applicable requirements means for an area
the following requirements to the extent such
requirements apply or applied to the area for
the area’s classification under section
181(a)(1) of the CAA for the 1-hour NAAQS
at designation for the 8-hour NAAQS:
(1) Reasonably available control technology
(RACT).
(2) Inspection and maintenance programs
(I/M).
(3) Major source applicability cut-offs for
purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section
182(c)(4) of the CAA.
(7) Clean fuels for boilers under section
182(e)(3) of the CAA.2
(8) Transportation Control Measures
(TCMs) during heavy traffic hours as
provided section 182(e)(4) of the CAA.2
(9) Enhanced (ambient) monitoring under
section 182(c)(1) of the CAA.
(10) Transportation controls under section
182(c)(5) of the CAA.
(11) Vehicle miles traveled provisions of
section 182(d)(1) of the CAA.
(12) NOX requirements under section 182(f)
of the CAA.
(13) Attainment demonstration or an
alternative as provided under
§ 51.905(a)(1)(ii).
Pursuant to 40 CFR 51.905(c), the
Milwaukee-Racine area is subject to the
2 Applies only to areas classified as extreme;
therefore, not a requirement for the MilwaukeeRacine area.
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obligations set forth in 40 CFR 51.905(a)
and 40 CFR 51.900(f).
In addition, the D.C. Circuit held that
EPA should have retained four
additional measures in its antibacksliding provisions: (1)
Nonattainment area NSR; (2) section 185
penalty fees; (3) contingency measures
under section 172(c)(9) or 182(c)(9) of
the Act; and (4) 1-hour MVEBs that were
not yet replaced by 8-hour emissions
budgets. EPA has addressed these four
requirements as follows:
With respect to NSR, EPA has
determined that an area being
redesignated need not have an approved
nonattainment NSR program, provided
that the state demonstrates maintenance
of the standard in the area without part
D NSR in effect. The 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.’’ This policy assumes that
the state’s PSD program will become
effective in the area immediately upon
redesignation to attainment.
Consequently EPA concludes that an
approved NSR program is not an
applicable requirement for purposes of
redesignation. See the more detailed
explanations in the following
rulemakings: Detroit, Michigan (60 FR
12467–12468, March 7, 1995);
Cleveland-Akron-Lorrain, Ohio (61 FR
20458, 20469–70, May 7, 1996);
Louisville, Kentucky (66 FR 53665,
53669, October 23, 2001); Grand Rapids,
Michigan (61 FR 31831, 31836–31837,
June 21, 1996). Furthermore, EPA
approved Wisconsin’s NSR program on
January 18, 1995 (60 FR 3538), February
6, 2006 (71 FR 5979), March 8, 2006 (71
FR 55062) and May 16, 2006 (71 FR
28274).
With regard to the requirement for
section 185 source penalty fees, the
Milwaukee-Racine area was classified as
severe nonattainment under the 1-hour
standard and is, therefore, subject to this
requirement. EPA approved an excess
VOC emissions fee rule for the
Milwaukee-Racine area on June 25, 2002
(67 FR 42729). On April 24, 2009 (74 FR
18641), EPA published a final rule
making a determination that the
Milwaukee-Racine area had attained the
1-hour ozone standard and confirming
that this finding of attainment relieved
Wisconsin of the obligation to adopt
section 185 source penalty fee
regulations for this area.
With respect to the 1-hour MVEBs
that were not yet replaced by 8-hour
emissions budgets, the conformity
portion of the court’s June 8, 2007 ruling
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clarified that, for those areas with
MVEBs for the 1-hour ozone standard,
anti-backsliding requires that these
MVEBs be used for 8-hour conformity
determinations until replaced by
MVEBs for the 8-hour ozone standard.
To meet this requirement, conformity
determinations in such areas must
comply with the applicable
requirements of EPA’s conformity
regulations at 40 CFR part 93. Note
below that EPA is proposing to find
adequate and approve 8-hour MVEBs
established by Wisconsin’s 8-hour
ozone maintenance plans for the
Milwaukee and Sheboygan areas.
With respect to the contingency
measure requirements under sections
172(c)(9) and 182(c)(9) of the CAA,
these requirements must be addressed
in state ozone Reasonable Further
Progress (RFP) and attainment
demonstration plans. Wisconsin
addressed these requirements in the
1-hour ozone RFP and attainment
demonstration plans for the MilwaukeeRacine area by adopting and
implementing extra VOC and NOX
emission controls that go beyond the
emission reductions needed for RFP and
attainment of the 1-hour ozone
standard. EPA approved these ozone
control plans, including their
contingency elements as follows: VOC
15 percent RFP plan, March 22, 1996
(61 FR 11735); post-1996 RFP plan,
November 10, 2001 (66 FR 51572); and
1-hour ozone attainment demonstration
and post-1999 RFP plan, November 13,
2001 (66 FR 56931). Therefore,
Wisconsin has met the contingency
measure requirements of sections
172(c)(9) and 182(c)(9) of the CAA for
the 1-hour ozone standard.
b. Sheboygan Area
With respect to the 1-hour standard
requirements, the Sheboygan area was
an attainment area subject to a CAA
section 175A maintenance plan under
the 1-hour standard. The D.C. Circuit’s
decisions do not impact redesignation
requests for these types of areas, except
to the extent that the court, in its June
8, 2007, decision, clarified that for those
areas with 1-hour MVEBs in their
maintenance plans, anti-backsliding
provisions require that those 1-hour
budgets must be used for 8-hour
conformity determinations until
replaced by 8-hour budgets. All
conformity determinations must comply
with the applicable requirements 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 Sheboygan area is
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an attainment area subject to a
maintenance plan for the 1-hour
standard, and the nonattainment NSR,
contingency measures (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
should not alter requirements that
would preclude EPA from proposing or
finalizing the redesignations of these
areas.
IV. What are the criteria for
redesignation to attainment?
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,’’
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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, 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.
V. What is EPA’s analysis of the State’s
request?
A. Redesignation
EPA is proposing to determine that
the Milwaukee-Racine and Sheboygan
areas have met all applicable
redesignation criteria under CAA
section 107(d)(3)(E). The bases for EPA’s
proposed approval of the redesignation
requests are as follows:
1. The Areas Have Attained the 1997
8-Hour Ozone NAAQS. (Section
107(d)(3)(E)(i))
On March 1, 2011 (76 FR 11080), EPA
determined that the Milwaukee-Racine
and Sheboygan areas have attained the
1997 8-hour ozone NAAQS based on
monitoring data for 2006–2008 and
2007–2009, and 2008–2010 time
periods. An area may be considered to
be attaining the 1997 8-hour ozone
NAAQS if there are no violations, as
determined in accordance with 40 CFR
50.10 and 40 CFR part 50, appendix I,
based on three complete, consecutive
calendar years of quality-assured air
quality monitoring data. To attain this
standard, the three-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 EPA’s Air Quality System
(AQS). The monitors generally should
have remained at the same location for
the duration of the monitoring period
required for demonstrating attainment.
All 2006–2010 monitoring data have
been quality-assured in accordance with
40 CFR 58.10, recorded in the AQS
database, and certified. 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. Monitoring data is presented in
Table 1 below. In addition, available
preliminary monitoring data for 2011
continue to show the areas in
attainment of the standard.
TABLE 1—ANNUAL 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS AND THREE-YEAR AVERAGES OF 4TH
HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS
Area
MilwaukeeRacine.
Monitor
Kenosha ......
Pleasant Prairie 55–059–
0019.
16th St. HC 55–079–0010
WDNR SERHQ 55–079–
0026.
UWM-North 55–079–0041
Bayside 55–079–0085 ......
Grafton 55–089–0008 ......
Harr. Beach 55–089–0009
Racine 55–101–0017 .......
Slinger 55–131–0009 .......
Waukesha 55–133–0027
Kohler Andre Park 55–
117–0006.
Milwaukee ...
Ozaukee ......
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Sheboygan ..
Racine .........
Washington
Waukesha ...
Sheboygan ..
In addition, as discussed below with
respect to the maintenance plan, WDNR
has committed to continue to operate an
EPA-approved monitoring network in
the areas. WDNR will continue to
quality assure monitoring data in
accordance with 40 CFR part 58 and
enter all data into the AQS in
accordance with Federal guidelines. In
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2006
4th
high
(ppm)
County
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2007
4th
high
(ppm)
2008
4th
high
(ppm)
2009
4th
high
(ppm)
2006–
2008
average
(ppm)
2007–
2009
average
(ppm)
2008–
2010
average
(ppm)
0.079
0.085
0.072
0.071
0.081
0.078
0.076
0.074
0.064
0.068
0.067
0.075
0.059
0.063
0.066
0.067
0.065
0.076
0.063
0.068
0.064
0.068
0.063
0.068
0.073
0.073
0.071
0.072
0.071
0.066
0.067
0.083
0.078
0.083
0.082
0.084
0.077
0.071
0.072
0.088
0.065
0.069
0.064
0.067
0.065
0.060
0.060
0.075
0.068
0.072
0.067
0.070
0.071
0.065
0.059
0.074
n/a
0.082
0.075
0.078
0.078
0.064
0.062
0.085
0.072
0.075
0.072
0.074
0.071
0.065
0.066
0.082
0.070
0.074
0.071
0.073
0.071
0.065
0.063
0.079
n/a
0.074
0.068
0.071
0.071
0.063
0.060
0.078
summary, EPA believes that the data
provide an adequate demonstration that
the Milwaukee-Racine and Sheboygan
areas have attained and continue to
attain the 8-hour ozone NAAQS.
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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 are proposing to determine that
Wisconsin has met all currently
applicable SIP requirements for
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purposes of redesignation of the
Milwaukee-Racine and Sheboygan areas
to attainment of the 1997 8-hour ozone
standard under section 110 and part D
of the CAA, in accordance with section
107(d)(3)(E)(v). We are also proposing to
determine that the Wisconsin SIP, with
the exception of the comprehensive
emission inventory and certain VOC
RACT rules, is fully approved with
respect to all applicable requirements
for purposes of redesignation to
attainment of the 1997 8-hour ozone
standard, in accordance with section
107(d)(3)(E)(ii) of the CAA. As
discussed below, in this action EPA is
proposing to approve Wisconsin’s 2005
comprehensive emissions inventory as
meeting the comprehensive emissions
inventory requirement of section
182(a)(1) for the areas. EPA is taking
action on the Wisconsin VOC RACT
regulations in a separate rule.
Recognizing that the comprehensive
emissions inventory and VOC RACT
rules must be approved on or before we
complete final rulemaking approving
the redesignation requests, we
determine here that, assuming that this
occurs, Wisconsin will have met all
applicable section 110 and part D SIP
requirements of the CAA for purposes of
approval of Wisconsin’s ozone
redesignation requests for the
Milwaukee-Racine and Sheboygan
areas. 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 or will be fully approved
under section 110(k) of the CAA by the
time we complete final rulemaking on
Wisconsin’s ozone redesignation
requests for the Milwaukee-Racine and
Sheboygan areas. As discussed more
fully below, SIPs must be fully
approved only with respect to currently
applicable requirements 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
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ozone NAAQS). Applicable
requirements of the CAA that come due
subsequent to the state’s submittal of a
complete request remain applicable
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).
Since EPA determined that the areas
have attained the 1997 8-hour ozone
standard, under 40 CFR 51.918, the
requirements to submit certain planning
SIPs related to attainment, including
attainment demonstration requirements
(the reasonably available control
measure (RACM) requirement of section
172(c)(1) of the CAA, the RFP and
attainment demonstration requirements
of sections 172(c)(2) and (6) and
182(b)(1) of the CAA, and the
requirement for contingency measures
of section 172(c)(9) of the CAA) are not
applicable to the areas as long as they
continue to attain the NAAQS and will
cease to apply upon redesignation. In
addition, in the context of
redesignations, EPA has interpreted
requirements related to attainment as
not applicable for purposes of
redesignation. For example, in the
General Preamble EPA stated that:
[t]he section 172(c)(9) requirements are
directed at ensuring RFP and attainment by
the applicable date. These requirements no
longer apply when an area has attained the
standard and is eligible for redesignation.
Furthermore, section 175A for maintenance
plans * * * provides specific requirements
for contingency measures that effectively
supersede the requirements of section
172(c)(9) for these areas. ‘‘General Preamble
for the Interpretation of Title I of the Clean
Air Act Amendments of 1990,’’ (General
Preamble) 57 FR 13498, 13564 (April 16,
1992).
See also Calcagni memorandum at 6
(‘‘The requirements for reasonable
further progress and other measures
needed for attainment will not apply for
redesignations because they only have
meaning for areas not attaining the
standard.’’).
a. The Milwaukee-Racine and
Sheboygan Areas Have Met All
Applicable Requirements Under Section
110 and Part D of the CAA for Purposes
of Redesignation
i. Section 110 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
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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, 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, e.g., the NOX SIP Call.3
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. The
transport SIP submittal requirements,
where applicable, continue to apply to
a state regardless of the designation of
any one particular area in the state.
Thus, we believe that these
requirements should not be construed to
be applicable requirements for purposes
of redesignation.
Further, we conclude 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
3 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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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 FR 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, Ohio 1-hour
ozone redesignation (65 FR 37890, June
19, 2000), and in the Pittsburgh,
Pennsylvania 1-hour ozone
redesignation (66 FR 50399, October 19,
2001).
We have reviewed Wisconsin’s SIP
and have concluded that it meets the
general SIP requirements under section
110 of the CAA, to the extent those
requirements are applicable for
purposes of redesignation. EPA has
previously approved provisions of the
Wisconsin SIP addressing section 110
elements under the 1-hour ozone
standard (40 CFR 52.2570). Further, in
submittals dated December 12, 2007,
January 24, 2011, and March 28, 2011,
Wisconsin confirmed that the state
continues to meet the section 110
requirements for the 8-hour ozone
standard. EPA approved some elements
of this Wisconsin submittal on July 13,
2011, at 76 FR 41075. The requirements
of section 110(a)(2), however, are
statewide requirements that are not
linked to the 8-hour ozone
nonattainment status of the MilwaukeeRacine and Sheboygan areas. Therefore,
EPA concludes that these infrastructure
SIP elements are not applicable
requirements for purposes of review of
the state’s 8-hour ozone redesignation
request.
ii. Part D Requirements
EPA has determined that, if EPA
finalizes the approval of the 2005
comprehensive emissions inventory,
discussed in section V.C. of this
rulemaking, and the VOC RACT
submittal, discussed below under the
heading ‘‘Subpart 2 Section 182(a) and
(b) Requirements,’’ the Wisconsin SIP
will meet the SIP requirements
applicable for purposes of redesignation
under part D of the CAA for the
Milwaukee-Racine and Sheboygan
areas. Subpart 1 of part D, found in
sections 172–176 of the CAA, sets forth
the basic nonattainment requirements
applicable to all nonattainment areas.
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Subpart 2 of part D, which includes
section 182 of the CAA, establishes
additional specific requirements
depending on the area’s nonattainment
classification.
The Milwaukee-Racine and
Sheboygan areas were classified as
moderate areas under subpart 2.
Therefore, the state must meet the
applicable requirements of both subpart
1 and subpart 2 of part D. The
applicable subpart 1 requirements are
contained in sections 172(c)(1)–(9) and
in section 176. The applicable subpart 2
requirements are contained in sections
182(a) and (b) (marginal and moderate
nonattainment area requirements).
Subpart 1 Section 172 Requirements.
For purposes of evaluating this
redesignation request, the applicable
section 172 SIP requirements for the
Milwaukee-Racine and Sheboygan areas
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).
Section 172(c)(1) requires the plans
for all nonattainment areas to provide
for the implementation of all RACM as
expeditiously as practicable and to
provide for attainment for the national
primary ambient air quality standards.
EPA interprets this requirement to
impose a duty on all states containing
nonattainment areas to consider all
available control measures and to adopt
and implement such measures as are
reasonably available for implementation
in each area as components of the area’s
attainment demonstration. Because
attainment has been reached in the
Milwaukee-Racine and Sheboygan
areas, no additional measures are
needed to provide for attainment and
section 172(c)(1) requirements are no
longer considered to be applicable as
long as the area continues to attain the
standard until redesignation. See 40
CFR 51.918.
The RFP requirement under section
172(c)(2) is defined as progress that
must be made toward attainment. This
requirement is not relevant for purposes
of redesignation because the
Milwaukee-Racine and Sheboygan areas
have demonstrated monitored
attainment of the 1997 8-hour ozone
NAAQS. (General Preamble, 57 FR
13564). See also 40 CFR 51.918. In
addition, because the Milwaukee-Racine
and Sheboygan areas have attained the
ozone NAAQS and are no longer subject
to an RFP requirement, the section
172(c)(9) contingency measures are not
applicable for purposes of
redesignation. Id.
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6733
Section 172(c)(3) requires submission
and approval of a comprehensive,
accurate and current inventory of actual
emissions. This requirement was
superseded by the inventory
requirement in section 182(a)(1)
discussed below.
Section 172(c)(4) requires the
identification and quantification of
allowable emissions for major new and
modified stationary sources in an area,
and section 172(c)(5) requires source
permits for the construction and
operation of new and modified major
stationary sources anywhere in the
nonattainment area. EPA approved
Wisconsin’s current NSR program on
December 17, 2008 (73 FR 76558 and
76560). Nonetheless, 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
Milwaukee-Racine and Sheboygan areas
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
Milwaukee-Racine and Sheboygan areas
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 172(c)(6) requires the SIP to
contain control measures necessary to
provide for attainment of the standard.
Because attainment has been reached,
no additional measures are needed to
provide for attainment.
Section 172(c)(7) requires the SIP to
meet the applicable provisions of
section 110(a)(2). As noted above, we
believe the Wisconsin SIP meets the
requirements of section 110(a)(2) for
purposes of redesignation.
Subpart 1, 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 interprets 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, 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 MilwaukeeRacine area of 21.08 tons per day (tpd)
and 15.98 tpd VOC and 51.22 tpd and
31.91 tpd NOX for the years 2015 and
2022, respectively. Wisconsin has
submitted onroad motor vehicle budgets
for the Sheboygan area of 2.024 tpd and
1.615 tpd VOC and 4.321 tpd and 2.778
tpd NOX for the years 2015 and 2022,
respectively. The areas 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.
Subpart 2 Section 182(a) and (b)
Requirements.
Comprehensive Emissions Inventory.
Section 182(a)(1) requires the
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submission of a comprehensive
emissions inventory. As part of
Wisconsin’s redesignation request for
the Milwaukee-Racine and Sheboygan
areas, the state submitted a 2005
comprehensive emissions inventory. As
discussed below in section V.C., EPA is
proposing to approve the 2005
inventory as meeting the section
182(a)(1) comprehensive emissions
inventory requirement.
Emissions Statements. EPA approved
Wisconsin’s emission statement SIP, as
required by section 182(a)(3)(B), on
December 6, 1993 (58 FR 64155).
Reasonable Further Progress and
Attainment Demonstration. On
September 11, 2009, Wisconsin
submitted an attainment demonstration
and RFP plans for the MilwaukeeRacine and Sheboygan areas as required
by section 182(b)(1) of the CAA.
Because attainment has been reached,
section 182(b)(1) requirements are no
longer considered to be applicable as
long as the area continues to attain the
standard. If EPA finalizes approval of
the redesignation of the MilwaukeeRacine and Sheboygan areas, EPA will
take no further action on the attainment
demonstration and RFP plans submitted
by Wisconsin for the areas.
VOC RACT Requirements. Section
182(b)(2) requires states with moderate
nonattainment areas to implement
RACT under section 172(c)(1) with
respect to each of the following: (1) All
sources covered by a Control
Technology Guideline (CTG) document
issued between November 15, 1990, and
the date of attainment; (2) all sources
covered by a CTG issued prior to
November 15, 1990; and, (3) all other
major non-CTG stationary sources. As
required under the 1-hour ozone
standard, Wisconsin submitted VOC
RACT rules covering the second and
third categories. EPA approved these
VOC RACT rules on the following dates:
August 15, 1994 (59 FR 41709), April
27, 1995 (60 FR 20643), June 30, 1995
(60 FR 34170), July 28, 1995 (60 FR
38722), February 12, 1996 (61 FR 5307),
February 13, 1996 (61 FR 5514), April
4, 1996 (61 FR 14972), April 9, 1996
(61 FR 15706), April 25, 1996 (61 FR
18257), July 17, 1996 (61 FR 37216),
August 29, 1996 (61 FR 45327), June 8,
2000 (65 FR 36351), November 13, 2001
(66 FR 56931), and September 22, 2006
(71 FR 55287). With respect to the first
category, EPA issued CTGs for five
source categories in September 2006
and three additional source categories in
September 2007. Areas classified as
moderate and above were required to
submit VOC RACT for the source
categories covered by these CTGs, by
September 2007 and September 2008,
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respectively. Wisconsin submitted SIP
revisions to address these CTGs on
September 1, 2009, and November 16,
2011. EPA is taking action on these
revisions in a separate rulemaking
action. Full approval of Wisconsin’s
RACT submittals is a prerequisite for
approval of the redesignation of the
Milwaukee-Racine and Sheboygan areas
to attainment.
NOX RACT. Section 182(f) establishes
NOX requirements for ozone
nonattainment areas. EPA approved
Wisconsin’s NOX RACT SIP on October
19, 2010 (75 FR 64155).
Stage II Vapor Recovery. Section
182(b)(3) requires states to submit Stage
II rules no later than November 15,
1992. EPA approved Wisconsin’s Stage
II rule on August 13, 1993 (58 FR
43080), August 15, 1994 (59 FR 41709),
and April 27, 1995 (60 FR 206423).
Vehicle Inspection and Maintenance
(I/M). EPA’s final I/M regulations in
40 CFR part 85 required the states to
submit a fully adopted I/M program by
November 15, 1993. EPA approved
Wisconsin’s enhanced I/M program on
January 12, 1995 (60 FR 2881) and
August 16, 2001 (66 FR 42949).
Thus, as discussed above, with
approval of the comprehensive
emissions inventory and Wisconsin’s
VOC RACT submittals, the MilwaukeeRacine and Sheboygan areas will satisfy
the requirements applicable for
purposes of redesignation under section
110 and part D of the CAA.
b. The Milwaukee-Racine and
Sheboygan Areas Have a Fully
Approved Applicable SIP for Purposes
of Redesignation Under Section 110(k)
of the CAA
If EPA issues a final approval of the
comprehensive emissions inventory and
Wisconsin’s VOC RACT submittals, EPA
will have fully approved the Wisconsin
SIP for the Milwaukee-Racine and
Sheboygan areas 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 page three
of the September 4, 1992, John Calcagni
memorandum; 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 MilwaukeeRacine and Sheboygan areas under the
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1-hour ozone standard. In this action,
EPA is proposing to approve
Wisconsin’s 2005 comprehensive
emissions inventory for the MilwaukeeRacine and Sheboygan areas as meeting
the requirement of section 182(a)(1) of
the CAA. In a separate rule, EPA will
take action on the Wisconsin VOC
RACT submittals.
c. The Milwaukee-Racine Area Has a
Fully Approved SIP and Meets AntiBacksliding Requirements Under the
1-Hour Ozone Standard
The anti-backsliding provisions at 40
CFR 51.905(a)(1) prescribe 1-hour ozone
NAAQS requirements that continue to
apply after the revocation of the 1-hour
ozone NAAQS for former 1-hour ozone
nonattainment areas. 40 CFR
51.905(a)(1)(i) provides that:
The area remains subject to the obligation
to adopt and implement the applicable
requirements defined in 40 CFR 51.900(f),
except as provided in paragraph (a)(1)(iii) of
this section, and except as provided in
paragraph (b) of this section.
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40 CFR 51.900(f), as amended by 70 FR
30592, 30604 (May 26, 2005), provides
that:
Applicable requirements means for an area
the following requirements to the extent such
requirements apply or applied to the area for
the area’s classification under section
181(a)(1) of the CAA for the 1-hour NAAQS
at designation for the 8-hour NAAQS:
(1) Reasonably available control technology
(RACT).
(2) Inspection and maintenance programs
(I/M).
(3) Major source applicability cut-offs for
purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section
182(c)(4) of the CAA.
(7) Clean fuels for boilers under section
182(e)(3) of the CAA. [Not a requirement for
the Milwaukee-Racine area.]
(8) Transportation Control Measures
(TCMs) during heavy traffic hours as
provided under section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under
section 182(c)(1) of the CAA.
(10) Transportation controls under section
182(c)(5) of the CAA.
(11) Vehicle miles travelled provisions of
section 182(d)(1) of the CAA.
(12) NOX requirements under section 182(f)
of the CAA.
(13) Attainment demonstration or an
alternative as provided under 40 CFR
51.905(a)(1)(ii).
In addition to applicable requirements
listed under 40 CFR 51.900(f) and as
discussed above, the state must also
comply with the 1-hour anti-backsliding
requirements discussed in the DC
Circuit’s decisions in South Coast Air
Quality Management Dist. v. EPA. See
III.B.i, above.
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Pursuant to 40 CFR 51.905(c), the
Milwaukee-Racine area is subject to the
obligations set forth in 40 CFR 51.905(a)
and 40 CFR 51.900(f). The following
paragraphs address the 1-hour ozone
SIP requirements applicable to the
Milwaukee-Racine area pursuant to all
the anti-backsliding requirements
described above.
Prior to the revocation of the 1-hour
ozone standard on June 15, 2005, the
Milwaukee-Racine area was classified as
a severe nonattainment area for the
1-hour ozone standard with an
attainment deadline of November 15,
2007, and was therefore subject to the
ozone SIP requirements for severe
1-hour ozone nonattainment areas
contained in sections 182(a) through
182(d) of the CAA. In reviewing
Wisconsin’s ozone redesignation request
for the Milwaukee-Racine area, we
assessed whether the area satisfied the
CAA requirements under the 1-hour
ozone standard. We conclude that this
area and the state of Wisconsin have
satisfied all anti-backsliding CAA
requirements applicable to a severe
ozone nonattainment area by complying
with all applicable 1-hour ozone SIP
requirements. The following discusses
how the applicable CAA requirements
have been met in the Milwaukee-Racine
area.
40 CFR 51.900(f)(1) and (3) RACT
Section 182(a)(2)(A) of the CAA
requires RACT corrections. Section
182(b)(2) requires RACT for each
category of VOC sources covered by a
CTG and for all other major sources of
VOC within an ozone nonattainment
area. Section 182(d) specifies
requirements for severe ozone
nonattainment areas, including a major
source emissions cut-off of 25 tons per
year.
Under the 1-hour ozone standard,
EPA fully approved Wisconsin’s VOC
RACT regulations as SIP revisions for
CTG sources and for major non-CTG
sources through rulemakings on the
following dates: August 15, 1994 (59 FR
41709), April 27, 1995 (60 FR 20643),
June 30, 1995 (60 FR 34170), July 28,
1995 (60 FR 38722), February 12, 1996
(61 FR 5307), February 13, 1996 (61 FR
5514), April 4, 1996 (61 FR 14972),
April 9, 1996 (61 FR 15706), April 25,
1996 (61 FR 18257), July 17, 1996 (61
FR 37216), August 29, 1996 (61 FR
45327), June 8, 2000 (65 FR 36351),
November 13, 2001 (66 FR 56931), and
September 22, 2006 (71 FR 55287).
These RACT SIP revisions include rules
covering all non-CTG sources in the
Milwaukee-Racine area with the
potential to emit VOCs at or in excess
of 25 tons per year.
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6735
EPA issued CTGs for five source
categories in September 2006 and three
additional source categories in
September 2007. Areas classified as
moderate and above for the 1997 8-hour
standard were required to submit VOC
RACT for the source categories covered
by these CTGs by September 2007 and
September 2008, respectively.
Wisconsin submitted SIP revisions to
address these CTGs on September 1,
2009, and November 16, 2011. EPA is
taking action on these revisions in a
separate rulemaking action. Full
approval of Wisconsin’s RACT
submittals is a prerequisite for approval
of the redesignation of the MilwaukeeRacine and Sheboygan areas to
attainment.
40 CFR 51.900(f)(2)
Vehicle I/M
EPA approved Wisconsin’s enhanced
I/M program on January 12, 1995 (60 FR
2881), and August 16, 2001 (66 FR
42949).
40 CFR 51.900(f)(4)
ROP
Sections 182(b)(1)(A) and 182(c)(2)(B)
of the CAA establish the ROP
requirements for ozone nonattainment
areas. EPA has fully approved
Wisconsin’s SIP revisions that
demonstrate that Wisconsin achieved
ROP in the Milwaukee-Racine area. On
March 22, 1996 (61 FR 11735), EPA
approved Wisconsin’s plan to achieve a
15 percent reduction in VOC emissions
in the Milwaukee-Racine area, as
required in section 182(b) of the CAA.
On October 10, 2001 (66 FR 51572), EPA
approved Wisconsin’s plan to achieve
ROP between 1996 and 1999 in this
area, meeting the ROP requirements of
section 182(c) of the CAA. Finally, on
November 13, 2001 (66 FR 56931), EPA
approved Wisconsin’s plan to achieve
ROP emission reductions for the period
of 1999 through 2007.
40 CFR 51.900(f)(5)
Vapor Recovery
Stage II Gasoline
EPA approved Wisconsin’s Stage II
rule on August 13, 1993 (58 FR 43080),
August 15, 1994 (59 FR 41709), and
April 27, 1995 (60 FR 206423).
40 CFR 51.900(f)(6)
Program
Clean Fuel Fleet
EPA approved Wisconsin’s clean fuel
fleet program rules as required by
section 182(c)(4) of the CAA on March
11, 1996 (61 FR 9639).
40 CFR 51.900(f)(7)
Boilers
Clean Fuels for
Section 182(e)(3) of the CAA, which
requires clean fuels for boilers, does not
apply to the Milwaukee-Racine area.
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This CAA requirement only applies to
extreme ozone nonattainment areas.
40 CFR 51.900(f)(8) Traffic Control
Measures During Heavy Traffic Hours
This requirement applies to areas
subject to section 182(e)(4) of the CAA,
which covers extreme ozone
nonattainment areas, and, therefore,
does not apply to the Milwaukee-Racine
area.
40 CFR 51.900(f)(9) Enhanced
Ambient Monitoring
On March 18, 1994 (59 FR 1251), EPA
approved Wisconsin’s SIP revision
establishing an enhanced monitoring
program for ozone in the MilwaukeeRacine area, as required by section
182(c)(1) of the CAA.
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40 CFR 51.900(f)(10) Transportation
Control Measures
Within six months of November 15,
1990, and every three years thereafter,
section 182(c)(5) of the CAA requires
states to submit a demonstration that
current aggregate vehicle mileage,
aggregate vehicle emissions, congestion
levels, and other relevant traffic-related
and vehicle emissions-related factors are
consistent with those used for the area’s
ozone attainment demonstration for
serious and above 1-hour ozone
nonattainment areas. If the levels of
relevant parameters that are projected in
the attainment demonstration are
exceeded, a state has 18 months to
develop and submit a revision to the SIP
to include TCMs to reduce mobile
source emissions to levels consistent
with the emission levels in the
attainment demonstration.
The section 182(c)(5) requirements are
included in those measures subject to
EPA’s interpretation under EPA’s May
10, 1995, Clean Data Policy
memorandum. As provided by the clean
data policy, since the Milwaukee-Racine
area is attaining the 1-hour ozone
standard, any requirement for
submitting the section 182(c)(5)
measures for the Milwaukee-Racine area
is suspended. See also 40 CFR 51.918.
40 CFR 51.900(f)(11) Vehicle Miles
Travelled
Section 182(d)(1)(A) of the CAA
requires severe ozone nonattainment
areas to offset the growth in emissions
attributed to growth in VMT; to select
and implement TCMs necessary to
comply with the periodic emission
reduction requirements of sections
182(b) and (c); and, to consider TCMs
specified in section 108(f) of the CAA,
and implement TCMs as necessary to
demonstrate attainment with the ozone
standard. EPA approved Wisconsin’s
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section 182(d)(1)(A) VMT SIP on May 5,
1995 (60 FR 22284), and September 11,
1995 (60 FR 47088).
40 CFR 51.900(f)(12) NOX
Requirements Under Section 182(f)
Section 182(f) requires major sources
of NOX in an ozone nonattainment area
to be covered by emission control
requirements equivalent to those
required for major sources of VOC,
unless EPA waives the NOX emission
control requirements as provided in
section 182(f). The section 182(f) NOX
emission control requirements include
NOX RACT in ozone nonattainment
areas required to implement VOC RACT
for 1-hour ozone nonattainment areas
classified as moderate or above. On
February 3, 1998 (63 FR 5460), EPA
approved a NOX emissions control
waiver for the Milwaukee-Racine area
for the 1-hour ozone standard.
40 CFR 51.900(f)(13) Ozone
Attainment Demonstration
On November 13, 2001 (66 FR 56931),
EPA approved Wisconsin’s 1-hour
ozone attainment demonstration SIP
revision for the Milwaukee-Racine area.
New Source Review
EPA has determined that an area
being redesignated need not have an
approved nonattainment NSR program,
provided that the state demonstrates
maintenance of the standard in the area
without part D NSR in effect. The
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 See III.3.a.,
above
Transportation Conformity
The conformity portion of the court’s
ruling does not impact the redesignation
request for the Milwaukee-Racine area
except to the extent that the court, in its
June 8, 2007, decision clarified that, for
those areas with MVEBs for the 1-hour
ozone standard, anti-backsliding
requires that these MVEBs be used for
8-hour conformity determinations until
replaced by MVEBs for the 8-hour ozone
standard. To meet this requirement,
conformity determinations in such areas
must comply with the applicable
requirements of EPA’s conformity
regulations at 40 CFR part 93. Note
below that EPA is proposing to find
adequate and approve 8-hour MVEBs
established by Wisconsin’s 8-hour
ozone maintenance plans for the
Milwaukee and Sheboygan areas.
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Contingency Measures
The contingency measure
requirements under sections 172(c)(9)
and 182(c)(9) of the CAA must be
addressed in state ozone RFP and
attainment demonstration plans.
Wisconsin addressed these
requirements in the 1-hour ozone RFP
and attainment demonstration plans for
the Milwaukee-Racine area by adopting
and implementing extra VOC and NOX
emission controls that go beyond the
emission reductions needed for RFP and
attainment of the 1-hour ozone
standard. EPA approved these ozone
control plans, including their
contingency elements as follows: VOC
15 percent RFP plan, March 22, 1996
(61 FR 11735); post-1996 RFP plan,
November 10, 2001 (66 FR 51572); and
1-hour ozone attainment demonstration
and post-1999 RFP plan, November 13,
2001 (66 FR 56931). Therefore,
Wisconsin has met the contingency
requirements of sections 172(c)(9) and
182(c)(9) of the CAA for the 1-hour
ozone standard.
Section 185 Source Emission Penalty
Fees
EPA approved an excess VOC
emissions fee rule for the MilwaukeeRacine area on June 25, 2002 (67 FR
42729). On April 24, 2009 (74 FR
18641), EPA published a final rule
making a determination that the
Milwaukee-Racine area had attained the
1-hour ozone standard and confirming
that this finding of attainment relieved
Wisconsin of the obligation to adopt
section 185 source penalty fee
regulations for this area.
Conclusion
For the reasons discussed above, EPA
concludes that Wisconsin has met all
part D SIP requirements for the 1-hour
ozone standard applicable to the
Milwaukee-Racine area for purposes of
redesignation, as addressed in the DC
Circuit’s and EPA’s anti-backsliding
requirements.
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 MilwaukeeRacine and Sheboygan areas is due to
permanent and enforceable reductions
in emissions resulting from
implementation of the SIP, Federal
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percent); light duty trucks, minivans,
and sports utility vehicles (86 percent);
and, larger sports utility vehicles, vans,
and heavier trucks (69 to 95 percent).
VOC emission reductions are expected
to range from 12 to 18 percent,
depending on vehicle class, over the
same period. Some of these emission
reductions occurred by the attainment
years and additional emission
reductions will occur throughout the
maintenance period.
Heavy-Duty Diesel Engine Rule. In
July 2000, EPA issued a rule, effective
in 2004, that includes standards limiting
the sulfur content of diesel fuel. A
second phase took effect in 2007 which
further reduced the highway diesel fuel
sulfur content to 15 parts per million,
leading to additional reductions in
combustion NOX and VOC emissions.
This rule is expected to achieve a 95
percent reduction in NOX emissions
a. Permanent and Enforceable Controls
from diesel trucks and busses.
Implemented
Nonroad Diesel Rule. EPA issued this
The following is a discussion of
rule in 2004. This rule applies to diesel
permanent and enforceable measures
engines used in industries, such as
that have been implemented in the
construction, agriculture, and mining. It
areas:
is estimated that compliance with this
i. Automobile Inspection and
rule will cut NOX emissions from
Maintenance (I/M) program. Wisconsin
nonroad diesel engines by up to 90
operates an enhanced automobile
percent. Some of these emission
inspection and maintenance program in reductions occurred by the attainment
the Milwaukee-Racine and Sheboygan
years and additional emission
areas.
reductions will occur throughout the
ii. Stationary Source NOX Rules. As
maintenance period.
part of the state’s ROP plan under the
iv. New Source Performance
1-hour ozone standard, Wisconsin
Standards (NSPS), National Emissions
adopted regulations that control NOX
Standards for Hazardous Air Pollutants
emissions at electric utilities and large
(NESHAPS) and Maximum Achievable
industrial combustion sources and
Control Technology Standards (MACT).
establish NOX emissions standards for
A broad range of emission sectors are
new sources. The regulation of existing
subject to Federal NSPS, NESHAP, and
sources was estimated to achieve a 55
MACT standards with compliance
ton per day reduction by 2007.
requirements which take effect over the
iii. Federal Mobile Source Emission
attainment period.
Control Measures. Reductions in VOC
v. Control Measures in Upwind Areas.
and NOX emissions have occurred
On October 27, 1998 (63 FR 57356), EPA
statewide and in upwind areas as a
issued a NOX SIP Call requiring the
result of Federal emission control
District of Columbia and 22 states to
measures, with additional emission
reduce emissions of NOX. Affected
reductions expected to occur in the
states were required to comply with
future. Federal emission control
Phase I of the SIP Call beginning in
measures include the following.
2004, and Phase II beginning in 2007.
Tier 2 Emission Standards for
The reduction in NOX emissions has
Vehicles and Gasoline Sulfur Standards. resulted in lower concentrations of
These emission control requirements
transported ozone entering the
result in lower VOC and NOX emissions Milwaukee-Racine and Sheboygan
from new cars and light duty trucks,
areas. Emission reductions resulting
including sport utility vehicles. The
from regulations developed in response
Federal rules were phased in between
to the NOX SIP Call are permanent and
2004 and 2009. The EPA has estimated
enforceable.
that, by the end of the phase-in period,
b. Emission Reductions
the following vehicle NOX emission
Wisconsin is using the 2005
reductions will occur nationwide:
emissions inventory developed
passenger cars (light duty vehicles) (77
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measures, and other state-adopted
measures.
In making this demonstration, the
state has calculated the change in
emissions between 2005 and 2008. For
the nonattainment inventory, Wisconsin
used the 2005 emissions inventory
developed to meet the comprehensive
emissions inventory requirement of
section 182(a)(1) of the CAA. The state
developed an attainment inventory for
2008, one of the years the MilwaukeeRacine and Sheboygan areas monitored
attainment of the 1997 8-hour ozone
standard. 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 the MilwaukeeRacine and Sheboygan areas and
upwind areas have implemented in
recent years.
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6737
pursuant to section 182(a)(1) of the CAA
as the nonattainment inventory. This
inventory is discussed in more detail in
section V.C., below. In summary, WDNR
developed the point source inventory
using actual reported emissions, EPA’s
Clean Air Markets Database and EPA
techniques for emissions calculation.
The area source inventory was created
by backcasting Wisconsin’s 2008
emissions inventory that was submitted
to EPA for the National Emissions
Inventory. The nonroad mobile
inventory was created using EPA’s
National Mobile Inventory Model
(NMIM) (2009/05/04 version). In
addition, emissions estimates were
developed for commercial marine
vessels, aircraft, and railroads, three
nonroad categories not included in the
model. The onroad mobile source
inventory was developed using EPA’s
MOVES2010a model. Wisconsin is
using the 2008 emissions inventory for
the attainment inventory. The point
source sector of the emissions inventory
was created using annually reported
point source emissions, EPA’s Clean Air
Markets Database, and EPA techniques
for emissions calculation. Emissions
were estimated by collecting processlevel information from each facility that
qualifies for inclusion in the state’s
point source database. Area source
emissions estimates were taken from the
2008 emissions inventory developed by
WDNR to meet the periodic emissions
inventory requirement of 40 CFR part
51, subpart A.
In general, area source emissions
estimates were calculated using
population, gasoline consumption,
employment, crop acreages, and other
activity surrogates along with emission
factors. Emission factors were derived
from local data, local or national
surveys and EPA guidance for the
development of emissions inventories.
Nonroad emissions estimates were
developed using EPA’s NMIM (2009/05/
04 version). In addition, emissions
estimates were developed for
commercial marine vessels, aircraft, and
railroads, three nonroad categories not
included in the model. The onroad
mobile source inventory was developed
using EPA’s MOVES2010a model.
Using the inventories described
above, Wisconsin’s submittal
documents changes in VOC and NOX
emissions from 2005 to 2008 for the
Milwaukee-Racine and Sheboygan
areas. Emissions data are shown in
Tables 2 through 4.
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TABLE 2—MILWAUKEE-RACINE AND SHEBOYGAN AREA VOC AND NOX EMISSIONS FOR NONATTAINMENT YEAR 2005
[tpd]
Point
Area
Nonroad
Onroad
Total
County
VOC
Milwaukee-Racine Area ........
Kenosha County ............
Milwaukee County ..........
Ozaukee County ............
Racine County ...............
Washington County ........
Waukesha County ..........
Sheboygan Area (Sheboygan
County) ..............................
NOX
13.04
0.73
6.88
0.42
1.17
0.47
3.37
VOC
64.24
32.75
28.13
0.52
0.77
0.88
1.19
2.307
NOX
55.38
3.28
20.65
3.79
5.88
9.71
12.07
17.338
VOC
14.48
0.73
6.77
0.87
1.25
1.19
3.67
6.879
NOX
60.30
5.41
15.71
2.70
7.42
6.45
22.61
1.114
50.30
4.32
17.94
5.44
5.70
4.08
12.82
6.245
VOC
NOX
46.89
3.98
20.79
2.72
4.38
3.91
11.11
4.389
3.340
VOC
NOX
117.20
9.58
53.12
6.84
10.65
9.78
27.23
175.61
13.40
64.03
9.63
18.85
20.54
49.16
246.22
47.38
105.96
13.67
18.37
15.93
44.91
8.489
18.771
31.330
TABLE 3—MILWAUKEE-RACINE AND SHEBOYGAN AREA VOC AND NOX EMISSIONS FOR ATTAINMENT YEAR 2008
[tpd]
Point
Area
Nonroad
Onroad
Total
County
VOC
Milwaukee-Racine Area ........
Kenosha County ............
Milwaukee County ..........
Ozaukee County ............
Racine County ...............
Washington County ........
Waukesha County ..........
Sheboygan Area (Sheboygan
County) ..............................
VOC
NOX
12.17
1.33
5.52
0.42
1.41
0.49
3.00
39.16
8.56
26.91
0.73
1.13
0.26
1.57
2.113
NOX
57.22
3.39
21.19
3.99
6.17
9.97
12.51
12.972
VOC
14.76
0.76
6.85
0.89
1.27
1.23
3.76
7.064
NOX
50.02
4.57
12.90
2.17
6.23
5.39
18.76
1.139
45.34
3.94
15.83
4.66
4.99
4.10
11.82
5.329
VOC
36.35
3.05
16.05
2.13
3.51
2.97
8.64
3.689
2.665
NOX
VOC
155.76
12.34
55.66
8.71
17.32
18.82
42.91
92.74
7.52
41.68
5.47
8.79
7.62
21.66
6.322
NOX
192.00
20.78
91.27
11.75
16.18
13.21
38.81
17.171
24.122
TABLE 4—COMPARISON OF MILWAUKEE-RACINE AND SHEBOYGAN AREA 2005 AND 2008 VOC AND NOX EMISSIONS
[tpd]
VOC
County
2005
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Milwaukee-Racine Area .......................................
Point ..............................................................
Area ...............................................................
Nonroad ........................................................
Onroad ..........................................................
Sheboygan Area ..................................................
Point ..............................................................
Area ...............................................................
Nonroad ........................................................
Onroad ..........................................................
Table 4 shows that the MilwaukeeRacine area reduced VOC emissions by
19.85 tpd and NOX emissions by 54.22
tpd between 2005 and 2008, and the
Sheboygan area reduced VOC emissions
by 1.600 tpd and NOX emissions by
7.208 tpd between 2005 and 2008.
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 requests to
redesignate the Milwaukee-Racine and
Sheboygan nonattainment areas to
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2008
175.61
13.04
55.38
60.30
46.89
18.771
2.307
6.879
6.245
3.340
155.76
12.17
57.22
50.02
36.35
17.171
2.113
7.064
5.329
2.665
NOX
Net change
(2005–2008)
¥19.85
¥0.87
1.84
¥10.28
¥10.54
¥1.600
¥0.194
0.185
¥0.916
¥0.675
attainment status, WDNR submitted SIP
revisions to provide for the maintenance
of the 1997 8-hour ozone NAAQS in the
areas through 2022.
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
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2005
246.22
64.24
14.48
50.30
117.20
31.330
17.338
1.114
4.389
8.489
2008
192.00
39.16
14.76
45.34
92.74
24.122
12.972
1.139
3.689
6.322
Net change
(2005–2008)
¥54.22
¥25.08
0.28
¥4.96
¥24.46
¥7.208
¥4.366
0.025
¥0.700
¥2.167
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 violations of the 1997 8-hour
ozone standard.
The September 4, 1992, John Calcagni
memorandum provides additional
guidance on the content of a
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
ten years of the maintenance period, a
commitment to maintain the existing
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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
WDNR developed an emissions
inventory for 2008, one of the years
Wisconsin used to demonstrate
monitored attainment of the 1997
8-hour NAAQS, as described above. The
attainment level of emissions is
summarized in Table 3, above.
c. Demonstration of Maintenance
Along with the redesignation
requests, WDNR submitted revisions to
the 8-hour ozone SIP to include
maintenance plans for the MilwaukeeRacine and Sheboygan areas, in
compliance with section 175A of the
CAA. These demonstrations show
maintenance of the 1997 8-hour ozone
standard through 2022 by assuring that
current and future emissions of VOC
and NOX for the Milwaukee-Racine and
Sheboygan areas 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 emissions
inventories for the years 2015 and 2022
to demonstrate maintenance. The
emissions inventories were developed
as described below.
Electric Generating Unit (EGU) point
source emissions for 2018 were
estimated using IPM3.0. Non-EGU point
source emissions for 2018 were derived
by applying growth and control factors,
developed by Pechan for the Lake
Michigan Air Directors Consortium
(LADCO), to the 2005 inventory. Growth
factors were initially based on the
Economic Growth and Analysis System
(EGAS) model and were modified for
select priority categories by examining
emissions activity data. Projected
emissions for 2015 and 2022 were
estimated using linear interpolation and
extrapolation from 2008 and 2018
emissions estimates.
Area source emissions inventories
were created by projecting the 2008
emissions inventory. The emission
projections were primarily based on
growth factors from the EGAS model. If
EGAS growth factors were not available,
population based growth factors were
used.
Nonroad emissions estimates were
developed using EPA’s NMIM model
(2009/05/04 version). In addition,
emissions estimates were developed for
commercial marine vessels, aircraft, and
railroads, three nonroad categories not
included in the model. Onroad
emissions estimates were generated
using the MOVES2010a model.
Emissions data are shown in Tables 5
through 7 below.
TABLE 5—MILWAUKEE-RACINE AND SHEBOYGAN AREA VOC AND NOX EMISSIONS FOR MAINTENANCE YEAR 2015
[tpd]
Point
Area
Nonroad
Onroad
Total
County
VOC
Milwaukee-Racine Area ........
Kenosha County ............
Milwaukee County ..........
Ozaukee County ............
Racine County ...............
Washington County ........
Waukesha County ..........
Sheboygan Area (Sheboygan
County) ..............................
NOX
15.89
0.99
8.37
0.52
1.47
0.51
4.03
2.895
45.35
13.12
29.42
0.74
0.76
0.15
1.16
11.486
VOC
NOX
53.53
3.17
19.64
3.81
5.85
9.34
11.72
VOC
13.63
0.71
6.20
0.84
1.18
1.17
3.53
6.568
NOX
30.58
2.71
8.37
1.37
3.63
3.32
11.18
1.067
29.60
2.73
10.40
2.89
3.46
2.51
7.61
3.263
VOC
NOX
21.08
1.82
9.10
1.24
2.05
1.77
5.10
2.432
2.024
VOC
51.22
4.18
23.08
2.98
4.76
4.24
11.98
4.321
NOX
121.08
8.69
45.48
6.94
13.00
14.94
32.03
139.80
20.74
69.10
7.45
10.16
8.07
24.28
14.750
19.306
TABLE 6—MILWAUKEE-RACINE AND SHEBOYGAN AREA VOC AND NOX EMISSIONS FOR MAINTENANCE YEAR 2022
[tpd]
Point
Area
Nonroad
Onroad
Total
County
VOC
Milwaukee-Racine Area ........
Kenosha County ............
Milwaukee County ..........
Ozaukee County ............
Racine County ...............
Washington County ........
Waukesha County ..........
Sheboygan Area (Sheboygan County) ..........
19.61
0.65
11.22
0.63
1.52
0.53
5.06
3.677
NOX
51.57
17.68
31.93
0.76
0.39
0.05
0.76
10.000
VOC
59.83
3.50
21.88
4.33
6.63
10.43
13.06
7.256
NOX
VOC
13.51
0.72
6.03
0.85
1.17
1.20
3.54
NOX
23.55
1.84
7.48
1.19
2.44
2.52
8.08
1.074
2.189
21.13
1.94
7.76
1.83
2.57
1.59
5.44
VOC
15.98
1.41
6.78
0.95
1.58
1.36
3.90
1.876
1.615
NOX
VOC
31.91
2.64
14.18
1.88
3.00
2.69
7.52
2.778
NOX
118.97
7.40
47.36
7.10
12.17
14.84
30.10
118.12
22.98
59.90
5.32
7.13
5.53
17.26
14.737
15.728
TABLE 7—COMPARISON OF MILWAUKEE-RACINE AND SHEBOYGAN AREA 2008, 2015 AND 2022 VOC AND NOX
EMISSIONS
mstockstill on DSK4VPTVN1PROD with PROPOSALS
[tpd]
VOC
NOX
2008
2015
2022
Net
change
(2008–
2022)
2008
2015
2022
Net
change
(2008–
2022)
155.76
12.17
57.22
50.02
36.35
121.08
15.89
53.53
30.58
21.08
118.97
19.61
59.83
23.55
15.98
¥36.79
7.44
2.61
¥26.47
¥20.37
192.00
39.16
14.76
45.34
92.74
139.80
45.35
13.63
29.60
51.22
118.12
51.57
13.51
21.13
31.91
¥73.88
12.41
¥1.25
¥24.21
¥60.83
County
Milwaukee-Racine Area ....................................................
Point ...........................................................................
Area ............................................................................
Nonroad .....................................................................
Onroad .......................................................................
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TABLE 7—COMPARISON OF MILWAUKEE-RACINE AND SHEBOYGAN AREA 2008, 2015 AND 2022 VOC AND NOX
EMISSIONS—Continued
[tpd]
VOC
NOX
Net
change
(2008–
2022)
County
2008
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Sheboygan Area ...............................................................
Point ...........................................................................
Area ............................................................................
Nonroad .....................................................................
Onroad .......................................................................
The emission projections show that
WDNR does not expect emissions in the
Milwaukee-Racine and Sheboygan areas
to exceed the level of the 2008
attainment year inventory during the
maintenance period. In the MilwaukeeRacine area, WDNR projects VOC
emissions to decrease by 36.79 tpd and
NOX emissions to decrease by 73.88 tpd
between 2008 and 2022. In the
Sheboygan area, WDNR projects VOC
emissions to decrease by 2.434 tpd and
NOX emissions to decrease by 8.394 tpd
between 2008 and 2022.
Further, ozone modeling performed
by the Lake Michigan Air Directors
Consortium supports the conclusion
that the Milwaukee-Racine and
Sheboygan areas will maintain the 1997
8-hour ozone standard throughout the
maintenance period. Peak modeled
ozone levels in the Milwaukee-Racine
area for 2012 and 2018 are 0.080 ppm,
and 0.077 ppm, respectively. Peak
modeled ozone levels in the Sheboygan
area for 2012 and 2018 are 0.081 ppm,
and 0.076 ppm, respectively. These
projected ozone levels were modeled
applying only legally enforceable
controls; e.g., consent decrees, rules, the
NOX SIP Call, Federal motor vehicle
control programs, etc.
As part of its maintenance plans, the
state elected to include ‘‘safety margins’’
for the areas. 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 MilwaukeeRacine and Sheboygan areas attained
the 8-hour ozone NAAQS during the
2006–2008, 2007–2009, and 2008–2010
time periods. Wisconsin used 2008 as
the attainment level of emissions for the
areas. In the maintenance plans, WDNR
projected emission levels for 2022. For
the Milwaukee-Racine area, the
emissions from point, area, nonroad,
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17.171
2.113
7.064
5.329
2.665
2015
2022
14.750
2.895
6.568
3.263
2.024
14.737
3.677
7.256
2.189
1.615
¥2.434
1.564
0.192
¥3.140
¥1.050
and onroad mobile sources in 2008
equaled 155.76 tpd of VOC. WDNR
projected VOC emissions for the year
2022 to be 118.97 tpd of VOC. The SIP
submission demonstrates that the
Milwaukee-Racine 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, 36.79 tpd
of VOC for 2022. By this same method,
for the Milwaukee-Racine area, 73.88
tpd (i.e., 192.00 tpd less 118.12 tpd) is
the safety margin for NOX for 2022. For
the Sheboygan area, the safety margin
for 2022 is 2.434 tpd of VOC and 8.394
tpd of NOX. 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 ten
ozone monitors in the MilwaukeeRacine area and one monitor in the
Sheboygan area. WDNR has committed
to continue to monitor ozone levels in
the areas. WDNR will work with EPA
should changes in siting become
necessary. Wisconsin remains obligated
to meet monitoring requirements and
continue to quality assure monitoring
data in accordance with 40 CFR part 58,
and to enter all data into the AQS in
accordance with Federal guidelines.
e. Verification of Continued Attainment
Continued attainment of the ozone
NAAQS in the Milwaukee-Racine and
Sheboygan areas 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 Milwaukee-Racine and
Sheboygan consists of plans to continue
ambient ozone monitoring in
accordance with the requirements of 40
CFR part 58. WDNR will also continue
to develop and submit periodic
emission inventories as required by the
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2008
24.122
12.972
1.139
3.689
6.322
2015
19.306
11.486
1.067
2.432
4.321
2022
15.728
10.000
1.074
1.876
2.778
Net
change
(2008–
2022)
¥8.394
¥2.972
¥0.065
¥1.813
¥3.544
Federal Consolidated Emissions
Reporting Rule (67 FR 39602, June 10,
2002) to track future levels of emissions.
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
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
contingency plans for the MilwaukeeRacine and Sheboygan areas 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
evaluate existing but not fully
implemented, forthcoming, and, if
necessary, new control measures to
correct the violation of the standard
within 18 months. Wisconsin has
confirmed EPA’s interpretation that this
commitment means that the measure
will be adopted and implemented
within 18 months of the triggering
event. In addition, it is EPA’s
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understanding that to acceptably
address a violation of the standard,
existing and forthcoming control
measures must be in excess of emissions
reductions included in the projected
maintenance inventories.
WDNR included the following list of
potential contingency measures in its
maintenance plans:
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;
ii. Develop an anti-idling control
program for mobile sources targeting
diesel vehicles;
iii. Adopt a rule reducing VOC
content in architectural, industrial and
maintenance coatings; and
iv. Adopt a rule reducing VOC
content in commercial and consumer
products.
g. Provisions for Future Updates of the
Ozone Maintenance Plan
As required by section 175A(b) of the
CAA, WDNR commits to submit to the
EPA updated ozone maintenance plans
eight years after redesignation of the
Milwaukee-Racine and Sheboygan areas
to cover an additional ten-year period
beyond the initial ten-year maintenance
period. As required by section 175A of
the CAA, Wisconsin has committed to
retain the VOC and NOX control
measures contained in the SIP prior to
redesignation.
EPA has concluded that the
maintenance plans adequately address
the five basic components of a
maintenance plan: Attainment
inventory, maintenance demonstration,
monitoring network, verification of
continued attainment, and a
contingency plan. Thus EPA proposes to
find that the maintenance plan SIP
revisions submitted by Wisconsin for
the Milwaukee-Racine and Sheboygan
areas meet the requirements of section
175A of the CAA.
B. Adequacy of Wisconsin’s MVEBs
mstockstill on DSK4VPTVN1PROD with PROPOSALS
1. How are MVEBs developed and what
are the MVEBs for the MilwaukeeRacine and Sheboygan areas?
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., RFP and attainment demonstration
SIP revisions) and ozone maintenance
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plans create MVEBs based on onroad
mobile source emissions for criteria
pollutants and/or their precursors to
address pollution from onroad
transportation sources. The MVEBs are
the portions of the total allowable
emissions that are allocated to highway
and transit vehicle use that, 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).
Under section 176(c) of the CAA, new
transportation projects that receive
Federal funding or support, such as the
construction of new highways, must
‘‘conform’’ to (i.e., be consistent with)
the SIP. 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 approve or find that
the MVEBs are ‘‘adequate’’ for use in
determining transportation conformity
before the MVEBs can be used. Once
EPA affirmatively approves or finds the
submitted MVEBs to be adequate for
transportation conformity purposes, the
MVEBs must be 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 taking
action on the MVEB. The process for
determining the adequacy of submitted
SIP MVEBs is codified at 40 CFR 93.118.
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6741
The maintenance plans submitted by
Wisconsin for the Milwaukee-Racine
and Sheboygan areas contain new VOC
and NOX MVEBs for the areas for the
years 2015 and 2022. The availability of
the SIP submission with these 2015 and
2022 MVEBs was announced for public
comment on EPA’s Adequacy Web site
on December 6, 2011, at: https://www.
epa.gov/otaq/stateresources/transconf/
currsips.htm. The EPA public comment
period on adequacy of the 2015 and
2022 MVEBs for the Milwaukee-Racine
and Sheboygan areas closed on January
5, 2012. No adverse comments on the
submittal were received during the
adequacy comment period. The
submitted maintenance plan, which
included the MVEBs, was endorsed by
the Governor (or his or her designee)
and was subject to a state public
hearing. The MVEBS were developed as
part of an interagency consultation
process which includes Federal, state,
and local agencies. The MVEBS were
clearly identified and precisely
quantified. These MVEBs, when
considered together with all other
emissions sources, are consistent with
maintenance of the 1997 8-hour ozone
standard.
EPA, through this rulemaking, has
found adequate and is proposing to
approve the MVEBs for use to determine
transportation conformity in the
Milwaukee-Racine and Sheboygan
areas, because EPA has determined that
the areas 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 2015 MVEBs
for the Milwaukee-Racine and
Sheboygan areas to be 21.08 tpd for
VOC and 51.22 tpd for NOX, and 2.024
tpd for VOC and 4.321 tpd for NOX,
respectively. WDNR has determined the
2022 MVEBs for the Milwaukee-Racine
and Sheboygan areas to be 15.98 tpd for
VOC and 31.91 tpd for NOX, and 1.615
tpd for VOC and 2.778 tpd for NOX,
respectively. These MVEBs are
consistent with the onroad mobile
source VOC and NOX emissions
projected by the Wisconsin Department
of Transportation for 2015 and 2022, as
summarized in Table 7 above.
Wisconsin has demonstrated that the
Milwaukee-Racine area can maintain
the 8-hour ozone NAAQS with mobile
source emissions of 21.08 tpd and 15.98
tpd of VOC and 51.22 tpd and 31.91 tpd
of NOX in 2015 and 2022, respectively,
since emissions will remain under
attainment year emission levels.
Wisconsin has demonstrated that the
Sheboygan area can maintain the 8-hour
ozone NAAQS with mobile source
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emissions of 2.024 tpd and 1.615 tpd of
VOC and 4.321 tpd and 2.778 tpd of
NOX in 2015 and 2022, respectively,
since emissions will remain under
attainment year emission levels.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
C. 2005 Comprehensive Emissions
Inventory
As discussed above, section 182(a)(1)
of the CAA requires states containing
areas classified as marginal and above to
submit a comprehensive emissions
inventory. As part of Wisconsin’s
redesignation request for the
Milwaukee-Racine and Sheboygan
areas, the state submitted a 2005
comprehensive emissions inventory.
Emissions contained in the submittal
cover the general source categories of
point sources, area sources, nonroad
mobile sources and onroad mobile
sources.
WDNR developed the point source
inventory using annually reported point
source emissions, EPA’s Clean Air
Markets Database and EPA techniques
for emissions calculation. Where
feasible, Federal, state and local controls
were factored into the emission
calculations. Emissions were estimated
by collecting process-level information
from each facility that qualifies for
inclusion in the Wisconsin’s point
source database.
The area source inventory was created
by backcasting Wisconsin’s 2008
emissions inventory that WDNR
submitted to EPA for the National
Emissions Inventory. The backcasting
factors were primarily based on growth
factors from the EGAS model. If growth
factors were not available for source
classification code, population based
growth factors were used.
The nonroad mobile inventory was
created using NMIM (2009/05/04
version). In addition, emissions
estimates were developed for
commercial marine vesels, aircraft, and
railroads, three nonroad categories not
included in the model. Through
LADCO, Pechan, an independent
contractor, provided marine and rail
emission estimates. Aircraft emissions
were calculated using the Federal
Aviation Administration’s Emissions
and Dispersion Modeling System.
The Onroad mobile source inventory
was developed using EPA’s
MOVES2010a model. Emissions
estimates were made in accordance with
the User Guide for MOVES2010a 4 and
Technical Guidance on the Use of
MOVES2010 for Emission Inventory
4 U.S. EPA, Office of Transportation and Air
Quality, Assessment and Standards Division,
August 2010, EPA–420–B–10–036.
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16:41 Feb 08, 2012
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Preparation in State Implementation
Plans and Transportation Conformity 5.
The 2005 emissions estimates are
summarized in Table 2, above. EPA is
proposing to approve the 2005
emissions inventory as meeting the
section 182(a)(1) comprehensive
emissions inventory requirement for the
Milwaukee-Racine and Sheboygan
areas.
VI. Summary of Actions
After evaluating the redesignation
requests submitted by Wisconsin, EPA
concludes that the requests meet the
redesignation criteria set forth in section
107(d)(3)(E) of the CAA. Therefore, EPA
is proposing to approve the
redesignation of the Milwaukee-Racine
and Sheboygan areas from
nonattainment to attainment for the
1997 8-hour ozone NAAQS. EPA is also
proposing to approve Wisconsin’s
maintenance plan SIP revisions for the
Milwaukee-Racine and Sheboygan
areas. EPA’s proposed approval of the
maintenance plans is based on the
state’s demonstration that the plans
meet the requirements of section 175A
of the CAA, as described more fully
above. EPA is also proposing to approve
WDNR’s 2005 comprehensive emissions
inventories for the Milwaukee-Racine
and Sheboygan areas as meeting the
requirements of section 182(a)(1) of the
CAA. Finally, EPA finds adequate under
40 CFR 93.118(e) and is proposing to
approve Wisconsin’s 2015 and 2022
MVEBs for the Milwaukee-Racine and
Sheboygan areas.
VII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
5 U.S. EPA, Office of Transportation and Air
Quality, Transportation and Regional Programs
Division, April 2010, EPA–420–B–10–023.
PO 00000
Frm 00058
Fmt 4702
Sfmt 4702
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because
redesignation is an action that affects
the status of a geographical area and
does not impose any new regulatory
requirements on tribes, impact any
existing sources of air pollution on
tribal lands, nor impair the maintenance
of ozone national ambient air quality
standards in tribal lands. However,
because there are tribal lands located in
Milwaukee County, we provided the
affected tribe with the opportunity to
consult with EPA on the redesignation.
The affected tribe raised no concerns
with the proposed rule.
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.
E:\FR\FM\09FEP1.SGM
09FEP1
Federal Register / Vol. 77, No. 27 / Thursday, February 9, 2012 / Proposed Rules
Dated: January 31, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012–2989 Filed 2–8–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2009–0666; FRL–9629–3]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; Illinois; Ozone
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
a request from Illinois to redesignate the
Illinois portion of the Chicago-GaryLake County, Illinois-Indiana (IL-IN)
ozone nonattainment area (the Greater
Chicago area) to attainment of the 1997
8-hour ozone National Ambient Air
Quality Standard (NAAQS or standard)
because the request meets the statutory
requirements for redesignation under
the Clean Air Act (CAA). The Illinois
portion of the Greater Chicago area
includes Cook, DuPage, Kane, Lake,
McHenry, and Will Counties and
portions of Grundy (Aux Sable and
Goose Lake Townships) and Kendall
(Oswego Township) Counties. The
Illinois Environmental Protection
Agency (IEPA) submitted this request on
July 23, 2009, and supplemented its
request in a submittal on September 16,
2011. EPA is proposing to approve, as
a revision of the Illinois State
Implementation Plan (SIP), the State’s
plan for maintaining the 1997 8-hour
ozone standard through 2025 in the
Illinois portion of the Greater Chicago
area. EPA is proposing to approve 2002
Volatile Organic Compound (VOC) and
Nitrogen Oxides (NOX) emission
inventories for the Illinois portion of the
Greater Chicago area as a revision of the
Illinois SIP because the emission
inventories meet the requirements of
section 182(a) of the CAA. Finally, EPA
proposes to approve the State’s 2008
and 2025 VOC and NOX Motor Vehicle
Emission Budgets (MVEBs) for the
Illinois portion of the Greater Chicago
area.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
SUMMARY:
Comments must be received on
or before March 12, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2009–0666, by one of the
following methods:
DATES:
VerDate Mar<15>2010
16:41 Feb 08, 2012
Jkt 226001
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• Email: aburano.douglas@epa.gov.
• Fax: (312) 408–2279.
• Mail: Douglas Aburano, Chief,
Attainment Planning and Maintenance
Section (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
• Hand Delivery: Douglas Aburano,
Chief, Attainment Planning and
Maintenance Section (AR–18J), U.S.
Environmental Protection Agency, 77
West Jackson Boulevard, 18th Floor,
Chicago, Illinois 60604. Such deliveries
are only accepted during the Regional
Office’s 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–2009–
0666. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov, your
email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
and 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
PO 00000
Frm 00059
Fmt 4702
Sfmt 4702
6743
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 U.S. Environmental Protection
Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays. We recommend that
you telephone Edward Doty at (312)
886–6057 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT:
Edward Doty, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–6057,
or Doty.Edward@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 actions is EPA proposing?
III. What is the background for these actions?
A. General Background
B. What are the impacts of the December
22, 2006, and June 8, 2007, United States
Court of Appeals decisions regarding
EPA’s Phase 1 Ozone Implementation
Rule?
1. Summary of Court Decisions
2. Requirements Under the 8-Hour Ozone
Standard
3. Requirements Under the 1-Hour Ozone
Standard
IV. What are the criteria for redesignation?
V. What is EPA’s analysis of the State’s ozone
redesignation request?
A. Has the Greater Chicago area attained
the 1997 8-hour ozone NAAQS?
B. Has the State of Illinois met all
applicable requirements of Section 110
and Part D of the CAA for the Illinois
portion of the Greater Chicago area, and
does the Illinois portion of the Greater
Chicago area have a fully approved SIP
under Section 110(k) of the CAA?
1. The Illinois Portion of the Greater
Chicago Area Has Met All Applicable
Requirements of Section 110 and Part D
of the CAA for Purposes of
Redesignation
2. The Illinois Portion of the Greater
Chicago Area Has a Fully Approved SIP
for Purposes of Redesignation Under
Section 110 of the CAA
E:\FR\FM\09FEP1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 27 (Thursday, February 9, 2012)]
[Proposed Rules]
[Pages 6727-6743]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2989]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2009-0730; FRL-9629-2]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of
the Milwaukee-Racine and Sheboygan Areas to Attainment for 1997 8-Hour
Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve requests from the Wisconsin
Department of Natural Resources (WDNR) to redesignate the Milwaukee-
Racine and Sheboygan areas to attainment for the 1997 8-hour ozone
standard, because the requests meet the statutory requirements for
redesignation under the Clean Air Act (CAA or Act). The Milwaukee-
Racine area includes Milwaukee, Ozaukee, Racine, Washington, Waukesha,
and Kenosha Counties. The Sheboygan area includes Sheboygan County.
WDNR submitted these requests on September 11, 2009, and supplemented
the submittal on November 16, 2011. This proposed approval also
involves several related actions. EPA is proposing to approve, as
revisions to the Wisconsin State Implementation Plan (SIP), the state's
plans for maintaining the 1997 8-hour ozone National Ambient Air
Quality Standard (NAAQS or standard) through 2022 in the above-
mentioned areas. EPA is also proposing to approve the 2005
comprehensive emissions inventories for the Milwaukee-Racine and
Sheboygan areas as meeting the requirements of the CAA. Finally, EPA
finds adequate and is proposing to approve the state's 2015 and 2022
Motor Vehicle Emission Budgets (MVEBs) for the Milwaukee-Racine and
Sheboygan areas.
DATES: Comments must be received on or before March 12, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0730, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: Aburano.Douglas@epa.gov.
3. Fax: (312) 408-2279.
4. Mail: Doug Aburano, Chief, Attainment Planning and Maintenance
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand delivery: Doug Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 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-
2009-0730. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of this document,
``What Should I Consider as I Prepare My Comments for EPA?''
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Kathleen D'Agostino, Environmental
Engineer, at (312) 886-1767 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Engineer, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), U.S. Environmental
[[Page 6728]]
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 actions is EPA proposing to take?
III. What is the background for these actions?
A. What is the general background information?
B. What are the impacts of the December 22, 2006, and June 8,
2007, United States Court of Appeals decisions regarding EPA's Phase
1 Implementation Rule?
IV. What are the criteria for redesignation to attainment?
V. What is EPA's analysis of the State's request?
A. Redesignation
B. Adequacy of Wisconsin's MVEBs
C. 2005 Comprehensive Emissions Inventory
VI. Summary of Actions
VII. 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--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 actions is EPA proposing to take?
EPA is proposing to determine that the Milwaukee-Racine and
Sheboygan ozone nonattainment areas have met the requirements for
redesignation under section 107(d)(3)(E) of the CAA. EPA is thus
proposing to approve Wisconsin's requests to change the legal
designations of the Milwaukee-Racine and Sheboygan areas from
nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is
also proposing to approve Wisconsin's maintenance plan SIP revisions
for the Milwaukee-Racine and Sheboygan areas (such approval being one
of the CAA criteria for redesignation to attainment status). The
maintenance plans are designed to keep the Milwaukee-Racine and
Sheboygan areas in attainment of the ozone NAAQS through 2022. EPA is
proposing to approve the 2005 comprehensive emissions inventories for
the Milwaukee-Racine and Sheboygan areas as meeting the requirements of
section 182(a)(1) of the CAA. Finally, EPA is proposing to approve the
newly-established 2015 and 2022 MVEBs for the Milwaukee-Racine and
Sheboygan areas. The adequacy comment period for the MVEBs began on
December 6, 2011, 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 January 5, 2012. EPA did not receive any requests
for this submittal, or adverse comments on this submittal during the
adequacy comment period. See section V. B. of this rulemaking,
``Adequacy of Wisconsin's MVEBs,'' for further explanation on this
process. Therefore, EPA finds adequate, and is proposing to approve,
the state's 2015 and 2022 MVEBs for use in future transportation
conformity analyses for the areas.
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.
The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS
was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and
56852), the Milwaukee-Racine and Sheboygan areas were designated as
severe and moderate nonattainment areas, respectively, under the 1-hour
ozone NAAQS. The Sheboygan area was subsequently redesignated to
attainment of the 1-hour standard on August 26, 1996 (61 FR 43675).
Although the Milwaukee-Racine area was monitoring attainment of the 1-
hour ozone standard by the end of the 2005 ozone season, at the time
EPA revoked the 1-hour ozone NAAQS, on June 15, 2005, the Milwaukee-
Racine area was never redesignated as attainment under the 1-hour ozone
NAAQS.
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone
standard of 0.08 parts per million parts (ppm). 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. EPA designated 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 implementation rule for the 1997 8-hour ozone standard,
(69 FR 23951, April 30, 2004), an area was classified under subpart 2
based on its 8-hour ozone design value,\1\ 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 Milwaukee-Racine and Sheboygan areas were
designated as subpart 2, 8-hour ozone moderate nonattainment areas by
EPA on April 30, 2004 (69 FR 23857 and 23947) based on air quality
monitoring data from 2001-2003 (69 FR 23860).
---------------------------------------------------------------------------
\1\ To determine the 8-hour design value for an area, the three-
year average of the fourth-highest daily maximum 8-hour average
ozone concentration is calculated for each monitor within an area.
The highest three-year average is the design value for the area.
---------------------------------------------------------------------------
40 CFR 50.10 and appendix I of 40 CFR part 50 provide that the 8-
hour ozone standard is attained when the three-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
[[Page 6729]]
valid ambient monitoring data is greater than 90 percent, and no single
year has less than 75 percent data completeness. See 40 CFR part 50,
appendix I, 2.3(d).
WDNR submitted requests to redesignate the Milwaukee-Racine and
Sheboygan areas to attainment for the 1997 8-hour ozone standard on
September 11, 2009, and supplemented the request on November 16, 2011.
Complete, quality-assured and certified data for the 2006-2008, 2007-
2009, and 2008-2010 time periods indicate the 8-hour NAAQS for ozone,
as promulgated in 1997, has been attained for the Milwaukee-Racine and
Sheboygan areas. In addition, available monitoring data for 2011
continue to show the areas in attainment of the standard. 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).
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour
ozone standard of 0.075 ppm. EPA has not yet designated areas under the
2008 standard. The actions addressed in this proposed rulemaking relate
only to the 1997 8-hour ozone standard.
B. What are the impacts of the December 22, 2006, and June 8, 2007,
United States Court of Appeals decisions regarding EPA's Phase 1
Implementation Rule?
1. Summary of Court Decision
On December 22, 2006, in South Coast Air Quality Management Dist.
v. EPA, the U.S. Court of Appeals for the District of Columbia (DC
Circuit) vacated EPA's Phase 1 Implementation Rule for the 1997 8-hour
Ozone Standard (69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir.
2006). On June 8, 2007, 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. Id., Docket No. 04 1201. Therefore, several provisions of
the Phase 1 Rule remain effective: Provisions related to
classifications for areas currently classified under subpart 2 of title
I, part D, of the CAA 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. The June 8, 2007, decision also
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 D.C. Circuit 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, 2007, 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, 2007, 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 D.C. Circuit'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 Ozone Standard
With respect to the 1997 8-hour standard, the Milwaukee-Racine and
Sheboygan areas are classified under subpart 2. The June 8, 2007,
opinion clarifies that the court did not vacate the Phase 1 Rule's
provisions with respect to classifications for areas under subpart 2.
The court's decision therefore upholds EPA's classifications for those
areas classified under subpart 2 for the 8-hour ozone standard.
3. Requirements Under the 1-Hour Ozone Standard
a. Milwaukee-Racine Area
In its June 8, 2007 decision the D.C. Circuit limited its vacatur
so as to uphold those provisions of the anti-backsliding requirements
that were not successfully challenged. Therefore, an area must meet the
anti-backsliding requirements which apply by virtue of the area's
classification for the 1-hour ozone standard. See 40 CFR 51.900, et
seq.; 70 FR 30592, 30604 (May 26, 2005). As set forth in more detail
below, the area must also address four additional anti-backsliding
provisions identified by the court in its decisions.
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone standard requirements that continue to apply after
revocation of the 1-hour ozone NAAQS to former 1-hour ozone
nonattainment areas. 40 CFR 51.905(a)(1)(i) provides that:
The area remains subject to the obligation to adopt and
implement the applicable requirements as defined in section
51.900(f), except as provided in paragraph (a)(1)(iii) of this
section, and except as provided in paragraph (b) of this section.
40 CFR 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005),
states that:
Applicable requirements means for an area the following
requirements to the extent such requirements apply or applied to the
area for the area's classification under section 181(a)(1) of the
CAA for the 1-hour NAAQS at designation for the 8-hour NAAQS:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 182(c)(4) of the
CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the
CAA.\2\
---------------------------------------------------------------------------
\2\ Applies only to areas classified as extreme; therefore, not
a requirement for the Milwaukee-Racine area.
---------------------------------------------------------------------------
(8) Transportation Control Measures (TCMs) during heavy traffic
hours as provided section 182(e)(4) of the CAA.\2\
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the
CAA.
(10) Transportation controls under section 182(c)(5) of the CAA.
(11) Vehicle miles traveled provisions of section 182(d)(1) of
the CAA.
(12) NOX requirements under section 182(f) of the
CAA.
(13) Attainment demonstration or an alternative as provided
under Sec. 51.905(a)(1)(ii).
Pursuant to 40 CFR 51.905(c), the Milwaukee-Racine area is subject to
the
[[Page 6730]]
obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f).
In addition, the D.C. Circuit held that EPA should have retained
four additional measures in its anti-backsliding provisions: (1)
Nonattainment area NSR; (2) section 185 penalty fees; (3) contingency
measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-
hour MVEBs that were not yet replaced by 8-hour emissions budgets. EPA
has addressed these four requirements as follows:
With respect to NSR, EPA has determined that an area being
redesignated need not have an approved nonattainment NSR program,
provided that the state demonstrates maintenance of the standard in the
area without part D NSR in effect. The 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.'' This policy assumes that the state's PSD program will
become effective in the area immediately upon redesignation to
attainment. Consequently EPA concludes that an approved NSR program is
not an applicable requirement for purposes of redesignation. See the
more detailed explanations in the following rulemakings: Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain,
Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR
53665, 53669, October 23, 2001); Grand Rapids, Michigan (61 FR 31831,
31836-31837, June 21, 1996). Furthermore, EPA approved Wisconsin's NSR
program on January 18, 1995 (60 FR 3538), February 6, 2006 (71 FR
5979), March 8, 2006 (71 FR 55062) and May 16, 2006 (71 FR 28274).
With regard to the requirement for section 185 source penalty fees,
the Milwaukee-Racine area was classified as severe nonattainment under
the 1-hour standard and is, therefore, subject to this requirement. EPA
approved an excess VOC emissions fee rule for the Milwaukee-Racine area
on June 25, 2002 (67 FR 42729). On April 24, 2009 (74 FR 18641), EPA
published a final rule making a determination that the Milwaukee-Racine
area had attained the 1-hour ozone standard and confirming that this
finding of attainment relieved Wisconsin of the obligation to adopt
section 185 source penalty fee regulations for this area.
With respect to the 1-hour MVEBs that were not yet replaced by 8-
hour emissions budgets, the conformity portion of the court's June 8,
2007 ruling clarified that, for those areas with MVEBs for the 1-hour
ozone standard, anti-backsliding requires that these MVEBs be used for
8-hour conformity determinations until replaced by MVEBs for the 8-hour
ozone standard. To meet this requirement, conformity determinations in
such areas must comply with the applicable requirements of EPA's
conformity regulations at 40 CFR part 93. Note below that EPA is
proposing to find adequate and approve 8-hour MVEBs established by
Wisconsin's 8-hour ozone maintenance plans for the Milwaukee and
Sheboygan areas.
With respect to the contingency measure requirements under sections
172(c)(9) and 182(c)(9) of the CAA, these requirements must be
addressed in state ozone Reasonable Further Progress (RFP) and
attainment demonstration plans. Wisconsin addressed these requirements
in the 1-hour ozone RFP and attainment demonstration plans for the
Milwaukee-Racine area by adopting and implementing extra VOC and
NOX emission controls that go beyond the emission reductions
needed for RFP and attainment of the 1-hour ozone standard. EPA
approved these ozone control plans, including their contingency
elements as follows: VOC 15 percent RFP plan, March 22, 1996 (61 FR
11735); post-1996 RFP plan, November 10, 2001 (66 FR 51572); and 1-hour
ozone attainment demonstration and post-1999 RFP plan, November 13,
2001 (66 FR 56931). Therefore, Wisconsin has met the contingency
measure requirements of sections 172(c)(9) and 182(c)(9) of the CAA for
the 1-hour ozone standard.
b. Sheboygan Area
With respect to the 1-hour standard requirements, the Sheboygan
area was an attainment area subject to a CAA section 175A maintenance
plan under the 1-hour standard. The D.C. Circuit's decisions do not
impact redesignation requests for these types of areas, except to the
extent that the court, in its June 8, 2007, decision, clarified that
for those areas with 1-hour MVEBs in their maintenance plans, anti-
backsliding provisions require that those 1-hour budgets must be used
for 8-hour conformity determinations until replaced by 8-hour budgets.
All conformity determinations must comply with the applicable
requirements 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
Sheboygan area is an attainment area subject to a maintenance plan for
the 1-hour standard, and the nonattainment NSR, contingency measures
(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 should not alter requirements that
would preclude EPA from proposing or finalizing the redesignations of
these areas.
IV. What are the criteria for redesignation to attainment?
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,''
[[Page 6731]]
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, 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.
V. What is EPA's analysis of the State's request?
A. Redesignation
EPA is proposing to determine that the Milwaukee-Racine and
Sheboygan areas have met all applicable redesignation criteria under
CAA section 107(d)(3)(E). The bases for EPA's proposed approval of the
redesignation requests are as follows:
1. The Areas Have Attained the 1997 8-Hour Ozone NAAQS. (Section
107(d)(3)(E)(i))
On March 1, 2011 (76 FR 11080), EPA determined that the Milwaukee-
Racine and Sheboygan areas have attained the 1997 8-hour ozone NAAQS
based on monitoring data for 2006-2008 and 2007-2009, and 2008-2010
time periods. An area may be considered to be attaining the 1997 8-hour
ozone NAAQS if there are no violations, as determined in accordance
with 40 CFR 50.10 and 40 CFR part 50, appendix I, based on three
complete, consecutive calendar years of quality-assured air quality
monitoring data. To attain this standard, the three-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 EPA's Air Quality System (AQS).
The monitors generally should have remained at the same location for
the duration of the monitoring period required for demonstrating
attainment.
All 2006-2010 monitoring data have been quality-assured in
accordance with 40 CFR 58.10, recorded in the AQS database, and
certified. 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. Monitoring data is
presented in Table 1 below. In addition, available preliminary
monitoring data for 2011 continue to show the areas in attainment of
the standard.
Table 1--Annual 4th High Daily Maximum 8-Hour Ozone Concentrations and Three-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
2006 2007 2008 2009 2010
4th 4th 4th 4th 4th 2006-2008 2007-2009 2008-2010
Area County Monitor high high high high high average average average
(ppm) (ppm) (ppm) (ppm) (ppm) (ppm) (ppm) (ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine................ Kenosha............ Pleasant Prairie 55- 0.079 0.085 0.072 0.071 0.081 0.078 0.076 0.074
059-0019.
Milwaukee.......... 16th St. HC 55-079- 0.064 0.067 0.059 0.066 0.065 0.063 0.064 0.063
0010.
WDNR SERHQ 55-079- 0.068 0.075 0.063 0.067 0.076 0.068 0.068 0.068
0026.
UWM-North 55-079- 0.073 0.078 0.065 0.068 n/a 0.072 0.070 n/a
0041.
Bayside 55-079-0085 0.073 0.083 0.069 0.072 0.082 0.075 0.074 0.074
Ozaukee............ Grafton 55-089-0008 0.071 0.082 0.064 0.067 0.075 0.072 0.071 0.068
Harr. Beach 55-089- 0.072 0.084 0.067 0.070 0.078 0.074 0.073 0.071
0009.
Racine............. Racine 55-101-0017. 0.071 0.077 0.065 0.071 0.078 0.071 0.071 0.071
Washington......... Slinger 55-131-0009 0.066 0.071 0.060 0.065 0.064 0.065 0.065 0.063
Waukesha........... Waukesha 55-133- 0.067 0.072 0.060 0.059 0.062 0.066 0.063 0.060
0027.
Sheboygan....................... Sheboygan.......... Kohler Andre Park 0.083 0.088 0.075 0.074 0.085 0.082 0.079 0.078
55-117-0006.
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In addition, as discussed below with respect to the maintenance
plan, WDNR has committed to continue to operate an EPA-approved
monitoring network in the areas. WDNR will continue to quality assure
monitoring data in accordance with 40 CFR part 58 and enter all data
into the AQS in accordance with Federal guidelines. In summary, EPA
believes that the data provide an adequate demonstration that the
Milwaukee-Racine and Sheboygan areas have attained and continue to
attain 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 are proposing to determine that Wisconsin has met all currently
applicable SIP requirements for
[[Page 6732]]
purposes of redesignation of the Milwaukee-Racine and Sheboygan areas
to attainment of the 1997 8-hour ozone standard under section 110 and
part D of the CAA, in accordance with section 107(d)(3)(E)(v). We are
also proposing to determine that the Wisconsin SIP, with the exception
of the comprehensive emission inventory and certain VOC RACT rules, is
fully approved with respect to all applicable requirements for purposes
of redesignation to attainment of the 1997 8-hour ozone standard, in
accordance with section 107(d)(3)(E)(ii) of the CAA. As discussed
below, in this action EPA is proposing to approve Wisconsin's 2005
comprehensive emissions inventory as meeting the comprehensive
emissions inventory requirement of section 182(a)(1) for the areas. EPA
is taking action on the Wisconsin VOC RACT regulations in a separate
rule.
Recognizing that the comprehensive emissions inventory and VOC RACT
rules must be approved on or before we complete final rulemaking
approving the redesignation requests, we determine here that, assuming
that this occurs, Wisconsin will have met all applicable section 110
and part D SIP requirements of the CAA for purposes of approval of
Wisconsin's ozone redesignation requests for the Milwaukee-Racine and
Sheboygan areas. 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 or will be fully approved under
section 110(k) of the CAA by the time we complete final rulemaking on
Wisconsin's ozone redesignation requests for the Milwaukee-Racine and
Sheboygan areas. As discussed more fully below, SIPs must be fully
approved only with respect to currently applicable requirements 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 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).
Since EPA determined that the areas have attained the 1997 8-hour
ozone standard, under 40 CFR 51.918, the requirements to submit certain
planning SIPs related to attainment, including attainment demonstration
requirements (the reasonably available control measure (RACM)
requirement of section 172(c)(1) of the CAA, the RFP and attainment
demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1)
of the CAA, and the requirement for contingency measures of section
172(c)(9) of the CAA) are not applicable to the areas as long as they
continue to attain the NAAQS and will cease to apply upon
redesignation. In addition, in the context of redesignations, EPA has
interpreted requirements related to attainment as not applicable for
purposes of redesignation. For example, in the General Preamble EPA
stated that:
[t]he section 172(c)(9) requirements are directed at ensuring RFP
and attainment by the applicable date. These requirements no longer
apply when an area has attained the standard and is eligible for
redesignation. Furthermore, section 175A for maintenance plans * * *
provides specific requirements for contingency measures that
effectively supersede the requirements of section 172(c)(9) for
these areas. ``General Preamble for the Interpretation of Title I of
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR
13498, 13564 (April 16, 1992).
See also Calcagni memorandum at 6 (``The requirements for reasonable
further progress and other measures needed for attainment will not
apply for redesignations because they only have meaning for areas not
attaining the standard.'').
a. The Milwaukee-Racine and Sheboygan Areas Have Met All Applicable
Requirements Under Section 110 and Part D of the CAA for Purposes of
Redesignation
i. Section 110 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, 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, e.g., the NOX SIP Call.\3\ 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. The transport SIP
submittal requirements, where applicable, continue to apply to a state
regardless of the designation of any one particular area in the state.
Thus, we believe that these requirements should not be construed to be
applicable requirements for purposes of redesignation.
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\3\ 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.
---------------------------------------------------------------------------
Further, we conclude 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
[[Page 6733]]
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
FR 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, Ohio 1-hour ozone redesignation (65 FR 37890, June 19,
2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation
(66 FR 50399, October 19, 2001).
We have reviewed Wisconsin's SIP and have concluded that it meets
the general SIP requirements under section 110 of the CAA, to the
extent those requirements are applicable for purposes of redesignation.
EPA has previously approved provisions of the Wisconsin SIP addressing
section 110 elements under the 1-hour ozone standard (40 CFR 52.2570).
Further, in submittals dated December 12, 2007, January 24, 2011, and
March 28, 2011, Wisconsin confirmed that the state continues to meet
the section 110 requirements for the 8-hour ozone standard. EPA
approved some elements of this Wisconsin submittal on July 13, 2011, at
76 FR 41075. The requirements of section 110(a)(2), however, are
statewide requirements that are not linked to the 8-hour ozone
nonattainment status of the Milwaukee-Racine and Sheboygan areas.
Therefore, EPA concludes that these infrastructure SIP elements are not
applicable requirements for purposes of review of the state's 8-hour
ozone redesignation request.
ii. Part D Requirements
EPA has determined that, if EPA finalizes the approval of the 2005
comprehensive emissions inventory, discussed in section V.C. of this
rulemaking, and the VOC RACT submittal, discussed below under the
heading ``Subpart 2 Section 182(a) and (b) Requirements,'' the
Wisconsin SIP will meet the SIP requirements applicable for purposes of
redesignation under part D of the CAA for the Milwaukee-Racine and
Sheboygan areas. Subpart 1 of part D, found in sections 172-176 of the
CAA, sets forth the basic nonattainment requirements applicable to all
nonattainment areas. Subpart 2 of part D, which includes section 182 of
the CAA, establishes additional specific requirements depending on the
area's nonattainment classification.
The Milwaukee-Racine and Sheboygan areas were classified as
moderate areas under subpart 2. Therefore, the state must meet the
applicable requirements of both subpart 1 and subpart 2 of part D. The
applicable subpart 1 requirements are contained in sections 172(c)(1)-
(9) and in section 176. The applicable subpart 2 requirements are
contained in sections 182(a) and (b) (marginal and moderate
nonattainment area requirements).
Subpart 1 Section 172 Requirements. For purposes of evaluating this
redesignation request, the applicable section 172 SIP requirements for
the Milwaukee-Racine and Sheboygan areas 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).
Section 172(c)(1) requires the plans for all nonattainment areas to
provide for the implementation of all RACM as expeditiously as
practicable and to provide for attainment for the national primary
ambient air quality standards. EPA interprets this requirement to
impose a duty on all states containing nonattainment areas to consider
all available control measures and to adopt and implement such measures
as are reasonably available for implementation in each area as
components of the area's attainment demonstration. Because attainment
has been reached in the Milwaukee-Racine and Sheboygan areas, no
additional measures are needed to provide for attainment and section
172(c)(1) requirements are no longer considered to be applicable as
long as the area continues to attain the standard until redesignation.
See 40 CFR 51.918.
The RFP requirement under section 172(c)(2) is defined as progress
that must be made toward attainment. This requirement is not relevant
for purposes of redesignation because the Milwaukee-Racine and
Sheboygan areas have demonstrated monitored attainment of the 1997 8-
hour ozone NAAQS. (General Preamble, 57 FR 13564). See also 40 CFR
51.918. In addition, because the Milwaukee-Racine and Sheboygan areas
have attained the ozone NAAQS and are no longer subject to an RFP
requirement, the section 172(c)(9) contingency measures are not
applicable for purposes of redesignation. Id.
Section 172(c)(3) requires submission and approval of a
comprehensive, accurate and current inventory of actual emissions. This
requirement was superseded by the inventory requirement in section
182(a)(1) discussed below.
Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources in an
area, and section 172(c)(5) requires source permits for the
construction and operation of new and modified major stationary sources
anywhere in the nonattainment area. EPA approved Wisconsin's current
NSR program on December 17, 2008 (73 FR 76558 and 76560). Nonetheless,
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 Milwaukee-Racine and Sheboygan
areas 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
Milwaukee-Racine and Sheboygan areas 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 172(c)(6) requires the SIP to contain control measures
necessary to provide for attainment of the standard. Because attainment
has been reached, no additional measures are needed to provide for
attainment.
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, we believe the
Wisconsin SIP meets the requirements of section 110(a)(2) for purposes
of redesignation.
Subpart 1, Section 176 Conformity Requirements.
Section 176(c) of the CAA requires states to establish criteria and
[[Page 6734]]
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 interprets 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, 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 Milwaukee-Racine area of 21.08 tons per day (tpd) and 15.98 tpd VOC
and 51.22 tpd and 31.91 tpd NOX for the years 2015 and 2022,
respectively. Wisconsin has submitted onroad motor vehicle budgets for
the Sheboygan area of 2.024 tpd and 1.615 tpd VOC and 4.321 tpd and
2.778 tpd NOX for the years 2015 and 2022, respectively. The
areas 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.
Subpart 2 Section 182(a) and (b) Requirements.
Comprehensive Emissions Inventory. Section 182(a)(1) requires the
submission of a comprehensive emissions inventory. As part of
Wisconsin's redesignation request for the Milwaukee-Racine and
Sheboygan areas, the state submitted a 2005 comprehensive emissions
inventory. As discussed below in section V.C., EPA is proposing to
approve the 2005 inventory as meeting the section 182(a)(1)
comprehensive emissions inventory requirement.
Emissions Statements. EPA approved Wisconsin's emission statement
SIP, as required by section 182(a)(3)(B), on December 6, 1993 (58 FR
64155).
Reasonable Further Progress and Attainment Demonstration. On
September 11, 2009, Wisconsin submitted an attainment demonstration and
RFP plans for the Milwaukee-Racine and Sheboygan areas as required by
section 182(b)(1) of the CAA. Because attainment has been reached,
section 182(b)(1) requirements are no longer considered to be
applicable as long as the area continues to attain the standard. If EPA
finalizes approval of the redesignation of the Milwaukee-Racine and
Sheboygan areas, EPA will take no further action on the attainment
demonstration and RFP plans submitted by Wisconsin for the areas.
VOC RACT Requirements. Section 182(b)(2) requires states with
moderate nonattainment areas to implement RACT under section 172(c)(1)
with respect to each of the following: (1) All sources covered by a
Control Technology Guideline (CTG) document issued between November 15,
1990, and the date of attainment; (2) all sources covered by a CTG
issued prior to November 15, 1990; and, (3) all other major non-CTG
stationary sources. As required under the 1-hour ozone standard,
Wisconsin submitted VOC RACT rules covering the second and third
categories. EPA approved these VOC RACT rules on the following dates:
August 15, 1994 (59 FR 41709), April 27, 1995 (60 FR 20643), June 30,
1995 (60 FR 34170), July 28, 1995 (60 FR 38722), February 12, 1996 (61
FR 5307), February 13, 1996 (61 FR 5514), April 4, 1996 (61 FR 14972),
April 9, 1996 (61 FR 15706), April 25, 1996 (61 FR 18257), July 17,
1996 (61 FR 37216), August 29, 1996 (61 FR 45327), June 8, 2000 (65 FR
36351), November 13, 2001 (66 FR 56931), and September 22, 2006 (71 FR
55287). With respect to the first category, EPA issued CTGs for five
source categories in September 2006 and three additional source
categories in September 2007. Areas classified as moderate and above
were required to submit VOC RACT for the source categories covered by
these CTGs, by September 2007 and September 2008, respectively.
Wisconsin submitted SIP revisions to address these CTGs on September 1,
2009, and November 16, 2011. EPA is taking action on these revisions in
a separate rulemaking action. Full approval of Wisconsin's RACT
submittals is a prerequisite for approval of the redesignation of the
Milwaukee-Racine and Sheboygan areas to attainment.
NOX RACT. Section 182(f) establishes NOX
requirements for ozone nonattainment areas. EPA approved Wisconsin's
NOX RACT SIP on October 19, 2010 (75 FR 64155).
Stage II Vapor Recovery. Section 182(b)(3) requires states to
submit Stage II rules no later than November 15, 1992. EPA approved
Wisconsin's Stage II rule on August 13, 1993 (58 FR 43080), August 15,
1994 (59 FR 41709), and April 27, 1995 (60 FR 206423).
Vehicle Inspection and Maintenance (I/M). EPA's final I/M
regulations in 40 CFR part 85 required the states to submit a fully
adopted I/M program by November 15, 1993. EPA approved Wisconsin's
enhanced I/M program on January 12, 1995 (60 FR 2881) and August 16,
2001 (66 FR 42949).
Thus, as discussed above, with approval of the comprehensive
emissions inventory and Wisconsin's VOC RACT submittals, the Milwaukee-
Racine and Sheboygan areas will satisfy the requirements applicable for
purposes of redesignation under section 110 and part D of the CAA.
b. The Milwaukee-Racine and Sheboygan Areas Have a Fully Approved
Applicable SIP for Purposes of Redesignation Under Section 110(k) of
the CAA
If EPA issues a final approval of the comprehensive emissions
inventory and Wisconsin's VOC RACT submittals, EPA will have fully
approved the Wisconsin SIP for the Milwaukee-Racine and Sheboygan areas
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 page three of the September 4,
1992, John Calcagni memorandum; 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
Milwaukee-Racine and Sheboygan areas under the
[[Page 6735]]
1-hour ozone standard. In this action, EPA is proposing to approve
Wisconsin's 2005 comprehensive emissions inventory for the Milwaukee-
Racine and Sheboygan areas as meeting the requirement of section
182(a)(1) of the CAA. In a separate rule, EPA will take action on the
Wisconsin VOC RACT submittals.
c. The Milwaukee-Racine Area Has a Fully Approved SIP and Meets Anti-
Backsliding Requirements Under the 1-Hour Ozone Standard
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone NAAQS requirements that continue to apply after the
revocation of the 1-hour ozone NAAQS for former 1-hour ozone
nonattainment areas. 40 CFR 51.905(a)(1)(i) provides that:
The area remains subject to the obligation to adopt and
implement the applicable requirements defined in 40 CFR 51.900(f),
except as provided in paragraph (a)(1)(iii) of this section, and
except as provided in paragraph (b) of this section.
40 CFR 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005),
provides that:
Applicable requirements means for an area the following
requirements to the extent such requirements apply or applied to the
area for the area's classification under section 181(a)(1) of the
CAA for the 1-hour NAAQS at designation for the 8-hour NAAQS:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 182(c)(4) of the
CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA.
[Not a requirement for the Milwaukee-Racine area.]
(8) Transportation Control Measures (TCMs) during heavy traffic
hours as provided under section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the
CAA.
(10) Transportation controls under section 182(c)(5) of the CAA.
(11) Vehicle miles travelled provisions of section 182(d)(1) of
the CAA.
(12) NOX requirements under section 182(f) of the
CAA.
(13) Attainment demonstration or an alternative as provided
under 40 CFR 51.905(a)(1)(ii).
In addition to applicable requirements listed under 40 CFR
51.900(f) and as discussed above, the state must also comply with the
1-hour anti-backsliding requirements discussed in the DC Circuit's
decisions in South Coast Air Quality Management Dist. v. EPA. See
III.B.i, above.
Pursuant to 40 CFR 51.905(c), the Milwaukee-Racine area is subject
to the obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f).
The following paragraphs address the 1-hour ozone SIP requirements
applicable to the Milwaukee-Racine area pursuant to all the anti-
backsliding requirements described above.
Prior to the revocation of the 1-hour ozone standard on June 15,
2005, the Milwaukee-Racine area was classified as a severe
nonattainment area for the 1-hour ozone standard with an attainment
deadline of November 15, 2007, and was therefore subject to the ozone
SIP requirements for severe 1-hour ozone nonattainment areas contained
in sections 182(a) through 182(d) of the CAA. In reviewing Wisconsin's
ozone redesignation request for the Milwaukee-Racine area, we assessed
whether the area satisfied the CAA requirements under the 1-hour ozone
standard. We conclude that this area and the state of Wisconsin have
satisfied all anti-backsliding CAA requirements applicable to a severe
ozone nonattainment area by complying with all applicable 1-hour ozone
SIP requirements. The following discusses how the applicable CAA
requirements have been met in the Milwaukee-Racine area.
40 CFR 51.900(f)(1) and (3) RACT
Section 182(a)(2)(A) of the CAA requires RACT corrections. Section
182(b)(2) requires RACT for each category of VOC sources covered by a
CTG and for all other major sources of VOC within an ozone
nonattainment area. Section 182(d) specifies requirements for severe
ozone nonattainment areas, including a major source emissions cut-off
of 25 tons per year.
Under the 1-hour ozone standard, EPA fully approved Wisconsin's VOC
RACT regulations as SIP revisions for CTG sources and for major non-CTG
sources through rulemakings on the following dates: August 15, 1994 (59
FR 41709), April 27, 1995 (60 FR 20643), June 30, 1995 (60 FR 34170),
July 28, 1995 (60 FR 38722), February 12, 1996 (61 FR 5307), February
13, 1996 (61 FR 5514), April 4, 1996 (61 FR 14972), April 9, 1996 (61
FR 15706), April 25, 1996 (61 FR 18257), July 17, 1996 (61 FR 37216),
August 29, 1996 (61 FR 45327), June 8, 2000 (65 FR 36351), November 13,
2001 (66 FR 56931), and September 22, 2006 (71 FR 55287). These RACT
SIP revisions include rules covering all non-CTG sources in the
Milwaukee-Racine area with the potential to emit VOCs at or in excess
of 25 tons per year.
EPA issued CTGs for five source categories in September 2006 and
three additional source categories in September 2007. Areas classified
as moderate and above for the 1997 8-hour standard were required to
submit VOC RACT for the source categories covered by these CTGs by
September 2007 and September 2008, respectively. Wisconsin submitted
SIP revisions to address these CTGs on September 1, 2009, and November
16, 2011. EPA is taking action on these revisions in a separate
rulemaking action. Full approval of Wisconsin's RACT submittals is a
prerequisite for approval of the redesignation of the Milwaukee-Racine
and Sheboygan areas to attainment.
40 CFR 51.900(f)(2) Vehicle I/M
EPA approved Wisconsin's enhanced I/M program on January 12, 1995
(60 FR 2881), and August 16, 2001 (66 FR 42949).
40 CFR 51.900(f)(4) ROP
Sections 182(b)(1)(A) and 182(c)(2)(B) of the CAA establish the ROP
requirements for ozone nonattainment areas. EPA has fully approved
Wisconsin's SIP revisions that demonstrate that Wisconsin achieved ROP
in the Milwaukee-Racine area. On March 22, 1996 (61 FR 11735), EPA
approved Wisconsin's plan to achieve a 15 percent reduction in VOC
emissions in the Milwaukee-Racine area, as required in section 182(b)
of the CAA. On October 10, 2001 (66 FR 51572), EPA approved Wisconsin's
plan to achieve ROP between 1996 and 1999 in this area, meeting the ROP
requirements of section 182(c) of the CAA. Finally, on November 13,
2001 (66 FR 56931), EPA approved Wisconsin's plan to achieve ROP
emission reductions for the period of 1999 through 2007.
40 CFR 51.900(f)(5) Stage II Gasoline Vapor Recovery
EPA approved Wisconsin's Stage II rule on August 13, 1993 (58 FR
43080), August 15, 1994 (59 FR 41709), and April 27, 1995 (60 FR
206423).
40 CFR 51.900(f)(6) Clean Fuel Fleet Program
EPA approved Wisconsin's clean fuel fleet program rules as required
by section 182(c)(4) of the CAA on March 11, 1996 (61 FR 9639).
40 CFR 51.900(f)(7) Clean Fuels for Boilers
Section 182(e)(3) of the CAA, which requires clean fuels for
boilers, does not apply to the Milwaukee-Racine area.
[[Page 6736]]
This CAA requirement only applies to extreme ozone nonattainment areas.
40 CFR 51.900(f)(8) Traffic Control Measures During Heavy Traffic Hours
This requirement applies to areas subject to section 182(e)(4) of
the CAA, which covers extreme ozone nonattainment areas, and,
therefore, does not apply to the Milwaukee-Racine area.
40 CFR 51.900(f)(9) Enhanced Ambient Monitoring
On March 18, 1994 (59 FR 1251), EPA approved Wisconsin's SIP
revision establishing an enhanced monitoring program for ozone in the
Milwaukee-Racine area, as required by section 182(c)(1) of the CAA.
40 CFR 51.900(f)(10) Transportation Control Measures
Within six months of November 15, 1990, and every three years
thereafter, section 182(c)(5) of the CAA requires states to submit a
demonstration that current aggregate vehicle mileage, aggregate vehicle
emissions, congestion levels, and other relevant traffic-related and
vehicle emissions-related factors are consistent with those used for
the area's ozone attainment demonstration for serious and above 1-hour
ozone nonattainment areas. If the levels of relevant parameters that
are projected in the attainment demonstration are exceeded, a state has
18 months to develop and submit a revision to the SIP to include TCMs
to reduce mobile source emissions to levels consistent with the
emission levels in the attainment demonstration.
The section 182(c)(5) requirements are included in those measures
subject to EPA's interpretation under EPA's May 10, 1995, Clean Data
Policy memorandum. As provided by the clean data policy, since the
Milwaukee-Racine area is attaining the 1-hour ozone standard, any
requirement for submitting the section 182(c)(5) measures for the
Milwaukee-Racine area is suspended. See also 40 CFR 51.918.
40 CFR 51.900(f)(11) Vehicle Miles Travelled
Section 182(d)(1)(A) of the CAA requires severe ozone nonattainment
areas to offset the growth in emissions attributed to growth in VMT; to
select and implement TCMs necessary to comply with the periodic
emission reduction requirements of sections 182(b) and (c); and, to
consider TCMs specified in section 108(f) of the CAA, and implement
TCMs as necessary to demonstrate attainment with the ozone standard.
EPA approved Wisconsin's section 182(d)(1)(A) VMT SIP on May 5, 1995
(60 FR 22284), and September 11, 1995 (60 FR 47088).
40 CFR 51.900(f)(12) NOX Requirements Under Section 182(f)
Section 182(f) requires major sources of NOX in an ozone
nonattainment area to be covered by emission control requirements
equivalent to those required for major sources of VOC, unless EPA
waives the NOX emission control requirements as provided in
section 182(f). The section 182(f) NOX emission control
requirements include NOX RACT in ozone nonattainment areas
required to implement VOC RACT for 1-hour ozone nonattainment areas
classified as moderate or above. On February 3, 1998 (63 FR 5460), EPA
approved a NOX emissions control waiver for the Milwaukee-
Racine area for the 1-hour ozone standard.
40 CFR 51.900(f)(13) Ozone Attainment Demonstration
On November 13, 2001 (66 FR 56931), EPA approved Wisconsin's 1-hour
ozone attainment demonstration SIP revision for the Milwaukee-Racine
area.
New Source Review
EPA has determined that an area being redesignated need not have an
approved nonattainment NSR program, provided that the state
demonstrates maintenance of the standard in the area without part D NSR
in effect. The 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 See III.3.a., above
Transportation Conformity
The conformity portion of the court's ruling does not impact the
redesignation request for the Milwaukee-Racine area except to the
extent that the court, in its June 8, 2007, decision clarified that,
for those areas with MVEBs for the 1-hour ozone standard, anti-
backsliding requires that these MVEBs be used for 8-hour conformity
determinations until replaced by MVEBs for the 8-hour ozone standard.
To meet this requirement, conformity determinations in such areas must
comply with the applicable requirements of EPA's conformity regulations
at 40 CFR part 93. Note below that EPA is proposing to find adequate
and approve 8-hour MVEBs established by Wisconsin's 8-hour ozone
maintenance plans for the Milwaukee and Sheboygan areas.
Contingency Measures
The contingency measure requirements under sections 172(c)(9) and
182(c)(9) of the CAA must be addressed in state ozone RFP and
attainment demonstration plans. Wisconsin addressed these requirements
in the 1-hour ozone RFP and attainment demonstration plans for the
Milwaukee-Racine area by adopting and implementing extra VOC and
NOX emission controls that go beyond the emission reductions
needed for RFP and attainment of the 1-hour ozone standard. EPA
approved these ozone control plans, including their contingency
elements as follows: VOC 15 percent RFP plan, March 22, 1996 (61 FR
11735); post-1996 RFP plan, November 10, 2001 (66 FR 51572); and 1-hour
ozone attainment demonstration and post-1999 RFP plan, November 13,
2001 (66 FR 56931). Therefore, Wisconsin has met the contingency
requirements of sections 172(c)(9) and 182(c)(9) of the CAA for the 1-
hour ozone standard.
Section 185 Source Emission Penalty Fees
EPA approved an excess VOC emissions fee rule for the Milwaukee-
Racine area on June 25, 2002 (67 FR 42729). On April 24, 2009 (74 FR
18641), EPA published a final rule making a determination that the
Milwaukee-Racine area had attained the 1-hour ozone standard and
confirming that this finding of attainment relieved Wisconsin of the
obligation to adopt section 185 source penalty fee regulations for this
area.
Conclusion
For the reasons discussed above, EPA concludes that Wisconsin has
met all part D SIP requirements for the 1-hour ozone standard
applicable to the Milwaukee-Racine area for purposes of redesignation,
as addressed in the DC Circuit's and EPA's anti-backsliding
requirements.
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 Milwaukee-Racine and Sheboygan areas is due
to permanent and enforceable reductions in emissions resulting from
implementation of the SIP, Federal
[[Page 6737]]
measures, and other state-adopted measures.
In making this demonstration, the state has calculated the change
in emissions between 2005 and 2008. For the nonattainment inventory,
Wisconsin used the 2005 emissions inventory developed to meet the
comprehensive emissions inventory requirement of section 182(a)(1) of
the CAA. The state developed an attainment inventory for 2008, one of
the years the Milwaukee-Racine and Sheboygan areas monitored attainment
of the 1997 8-hour ozone standard. 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 the
Milwaukee-Racine and Sheboygan areas and upwind areas have implemented
in recent years.
a. Permanent and Enforceable Controls Implemented
The following is a discussion of permanent and enforceable measures
that have been implemented in the areas:
i. Automobile Inspection and Maintenance (I/M) program. Wisconsin
operates an enhanced automobile inspection and maintenance program in
the Milwaukee-Racine and Sheboygan areas.
ii. Stationary Source NOX Rules. As part of the state's ROP plan
under the 1-hour ozone standard, Wisconsin adopted regulations that
control NOX emissions at electric utilities and large
industrial combustion sources and establish NOX emissions
standards for new sources. The regulation of existing sources was
estimated to achieve a 55 ton per day reduction by 2007.
iii. Federal Mobile Source 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 the following.
Tier 2 Emission Standards for Vehicles and Gasoline Sulfur
Standards. These emission control requirements result in lower VOC and
NOX emissions from new cars and light duty trucks, including
sport utility vehicles. The Federal rules were phased in between 2004
and 2009. The EPA has estimated that, by the end of the phase-in
period, the following vehicle NOX emission reductions will
occur nationwide: passenger cars (light duty vehicles) (77 percent);
light duty trucks, minivans, and sports utility vehicles (86 percent);
and, larger sports utility vehicles, vans, and heavier trucks (69 to 95
percent). VOC emission reductions are expected to range from 12 to 18
percent, depending on vehicle class, over the same period. Some of
these emission reductions occurred by the attainment years and
additional emission reductions will occur throughout the maintenance
period.
Heavy-Duty Diesel Engine Rule. In July 2000, EPA issued a rule,
effective in 2004, that includes standards limiting the sulfur content
of diesel fuel. A second phase took effect in 2007 which further
reduced the highway diesel fuel sulfur content to 15 parts per million,
leading to additional reductions in combustion NOX and VOC
emissions. This rule is expected to achieve a 95 percent reduction in
NOX emissions from diesel trucks and busses.
Nonroad Diesel Rule. EPA issued this rule in 2004. This rule
applies to diesel engines used in industries, such as construction,
agriculture, and mining. It is estimated that compliance with this rule
will cut NOX emissions from nonroad diesel engines by up to
90 percent. Some of these emission reductions occurred by the
attainment years and additional emission reductions will occur
throughout the maintenance period.
iv. New Source Performance Standards (NSPS), National Emissions
Standards for Hazardous Air Pollutants (NESHAPS) and Maximum Achievable
Control Technology Standards (MACT). A broad range of emission sectors
are subject to Federal NSPS, NESHAP, and MACT standards with compliance
requirements which take effect over the attainment period.
v. 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. Affected
states were required to comply with Phase I of the SIP Call beginning
in 2004, and Phase II beginning in 2007. The reduction in
NOX emissions has resulted in lower concentrations of
transported ozone entering the Milwaukee-Racine and Sheboygan areas.
Emission reductions resulting from regulations developed in response to
the NOX SIP Call are permanent and enforceable.
b. Emission Reductions
Wisconsin is using the 2005 emissions inventory developed pursuant
to section 182(a)(1) of the CAA as the nonattainment inventory. This
inventory is discussed in more detail in section V.C., below. In
summary, WDNR developed the point source inventory using actual
reported emissions, EPA's Clean Air Markets Database and EPA techniques
for emissions calculation. The area source inventory was created by
backcasting Wisconsin's 2008 emissions inventory that was submitted to
EPA for the National Emissions Inventory. The nonroad mobile inventory
was created using EPA's National Mobile Inventory Model (NMIM) (2009/
05/04 version). In addition, emissions estimates were developed for
commercial marine vessels, aircraft, and railroads, three nonroad
categories not included in the model. The onroad mobile source
inventory was developed using EPA's MOVES2010a model. Wisconsin is
using the 2008 emissions inventory for the attainment inventory. The
point source sector of the emissions inventory was created using
annually reported point source emissions, EPA's Clean Air Markets
Database, and EPA techniques for emissions calculation. Emissions were
estimated by collecting process-level information from each facility
that qualifies for inclusion in the state's point source database. Area
source emissions estimates were taken from the 2008 emissions inventory
developed by WDNR to meet the periodic emissions inventory requirement
of 40 CFR part 51, subpart A.
In general, area source emissions estimates were calculated using
population, gasoline consumption, employment, crop acreages, and other
activity surrogates along with emission factors. Emission factors were
derived from local data, local or national surveys and EPA guidance for
the development of emissions inventories. Nonroad emissions estimates
were developed using EPA's NMIM (2009/05/04 version). In addition,
emissions estimates were developed for commercial marine vessels,
aircraft, and railroads, three nonroad categories not included in the
model. The onroad mobile source inventory was developed using EPA's
MOVES2010a model.
Using the inventories described above, Wisconsin's submittal
documents changes in VOC and NOX emissions from 2005 to 2008
for the Milwaukee-Racine and Sheboygan areas. Emissions data are shown
in Tables 2 through 4.
[[Page 6738]]
Table 2--Milwaukee-Racine and Sheboygan Area VOC and NOX Emissions for Nonattainment Year 2005
[tpd]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Area Nonroad Onroad Total
County -----------------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine Area........... 13.04 64.24 55.38 14.48 60.30 50.30 46.89 117.20 175.61 246.22
Kenosha County.............. 0.73 32.75 3.28 0.73 5.41 4.32 3.98 9.58 13.40 47.38
Milwaukee County............ 6.88 28.13 20.65 6.77 15.71 17.94 20.79 53.12 64.03 105.96
Ozaukee County.............. 0.42 0.52 3.79 0.87 2.70 5.44 2.72 6.84 9.63 13.67
Racine County............... 1.17 0.77 5.88 1.25 7.42 5.70 4.38 10.65 18.85 18.37
Washington County........... 0.47 0.88 9.71 1.19 6.45 4.08 3.91 9.78 20.54 15.93
Waukesha County............. 3.37 1.19 12.07 3.67 22.61 12.82 11.11 27.23 49.16 44.91
Sheboygan Area (Sheboygan 2.307 17.338 6.879 1.114 6.245 4.389 3.340 8.489 18.771 31.330
County)........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3--Milwaukee-Racine and Sheboygan Area VOC and NOX Emissions for Attainment Year 2008
[tpd]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Area Nonroad Onroad Total
County -----------------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine Area........... 12.17 39.16 57.22 14.76 50.02 45.34 36.35 92.74 155.76 192.00
Kenosha County.............. 1.33 8.56 3.39 0.76 4.57 3.94 3.05 7.52 12.34 20.78
Milwaukee County............ 5.52 26.91 21.19 6.85 12.90 15.83 16.05 41.68 55.66 91.27
Ozaukee County.............. 0.42 0.73 3.99 0.89 2.17 4.66 2.13 5.47 8.71 11.75
Racine County............... 1.41 1.13 6.17 1.27 6.23 4.99 3.51 8.79 17.32 16.18
Washington County........... 0.49 0.26 9.97 1.23 5.39 4.10 2.97 7.62 18.82 13.21
Waukesha County............. 3.00 1.57 12.51 3.76 18.76 11.82 8.64 21.66 42.91 38.81
Sheboygan Area (Sheboygan 2.113 12.972 7.064 1.139 5.329 3.689 2.665 6.322 17.171 24.122
County)........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--Comparison of Milwaukee-Racine and Sheboygan Area 2005 and 2008 VOC and NOX Emissions
[tpd]
----------------------------------------------------------------------------------------------------------------
VOC NOX
-----------------------------------------------------------------------------------
County Net change Net change
2005 2008 (2005-2008) 2005 2008 (2005-2008)
----------------------------------------------------------------------------------------------------------------
Milwaukee-Racine Area....... 175.61 155.76 -19.85 246.22 192.00 -54.22
Point................... 13.04 12.17 -0.87 64.24 39.16 -25.08
Area.................... 55.38 57.22 1.84 14.48 14.76 0.28
Nonroad................. 60.30 50.02 -10.28 50.30 45.34 -4.96
Onroad.................. 46.89 36.35 -10.54 117.20 92.74 -24.46
Sheboygan Area.............. 18.771 17.171 -1.600 31.330 24.122 -7.208
Point................... 2.307 2.113 -0.194 17.338 12.972 -4.366
Area.................... 6.879 7.064 0.185 1.114 1.139 0.025
Nonroad................. 6.245 5.329 -0.916 4.389 3.689 -0.700
Onroad.................. 3.340 2.665 -0.675 8.489 6.322 -2.167
----------------------------------------------------------------------------------------------------------------
Table 4 shows that the Milwaukee-Racine area reduced VOC emissions
by 19.85 tpd and NOX emissions by 54.22 tpd between 2005 and
2008, and the Sheboygan area reduced VOC emissions by 1.600 tpd and
NOX emissions by 7.208 tpd between 2005 and 2008. 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 requests to redesignate the Milwaukee-
Racine and Sheboygan nonattainment areas to attainment status, WDNR
submitted SIP revisions to provide for the maintenance of the 1997 8-
hour ozone NAAQS in the areas through 2022.
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 violations of
the 1997 8-hour ozone standard.
The September 4, 1992, John Calcagni memorandum provides additional
guidance on the content of a 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 ten years of the maintenance
period, a commitment to maintain the existing
[[Page 6739]]
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
WDNR developed an emissions inventory for 2008, one of the years
Wisconsin used to demonstrate monitored attainment of the 1997 8-hour
NAAQS, as described above. The attainment level of emissions is
summarized in Table 3, above.
c. Demonstration of Maintenance
Along with the redesignation requests, WDNR submitted revisions to
the 8-hour ozone SIP to include maintenance plans for the Milwaukee-
Racine and Sheboygan areas, in compliance with section 175A of the CAA.
These demonstrations show maintenance of the 1997 8-hour ozone standard
through 2022 by assuring that current and future emissions of VOC and
NOX for the Milwaukee-Racine and Sheboygan areas 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 emissions inventories for the years 2015 and
2022 to demonstrate maintenance. The emissions inventories were
developed as described below.
Electric Generating Unit (EGU) point source emissions for 2018 were
estimated using IPM3.0. Non-EGU point source emissions for 2018 were
derived by applying growth and control factors, developed by Pechan for
the Lake Michigan Air Directors Consortium (LADCO), to the 2005
inventory. Growth factors were initially based on the Economic Growth
and Analysis System (EGAS) model and were modified for select priority
categories by examining emissions activity data. Projected emissions
for 2015 and 2022 were estimated using linear interpolation and
extrapolation from 2008 and 2018 emissions estimates.
Area source emissions inventories were created by projecting the
2008 emissions inventory. The emission projections were primarily based
on growth factors from the EGAS model. If EGAS growth factors were not
available, population based growth factors were used.
Nonroad emissions estimates were developed using EPA's NMIM model
(2009/05/04 version). In addition, emissions estimates were developed
for commercial marine vessels, aircraft, and railroads, three nonroad
categories not included in the model. Onroad emissions estimates were
generated using the MOVES2010a model.
Emissions data are shown in Tables 5 through 7 below.
Table 5--Milwaukee-Racine and Sheboygan Area VOC and NOX Emissions for Maintenance Year 2015
[tpd]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Area Nonroad Onroad Total
County -----------------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine Area........... 15.89 45.35 53.53 13.63 30.58 29.60 21.08 51.22 121.08 139.80
Kenosha County.............. 0.99 13.12 3.17 0.71 2.71 2.73 1.82 4.18 8.69 20.74
Milwaukee County............ 8.37 29.42 19.64 6.20 8.37 10.40 9.10 23.08 45.48 69.10
Ozaukee County.............. 0.52 0.74 3.81 0.84 1.37 2.89 1.24 2.98 6.94 7.45
Racine County............... 1.47 0.76 5.85 1.18 3.63 3.46 2.05 4.76 13.00 10.16
Washington County........... 0.51 0.15 9.34 1.17 3.32 2.51 1.77 4.24 14.94 8.07
Waukesha County............. 4.03 1.16 11.72 3.53 11.18 7.61 5.10 11.98 32.03 24.28
Sheboygan Area (Sheboygan 2.895 11.486 6.568 1.067 3.263 2.432 2.024 4.321 14.750 19.306
County)........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6--Milwaukee-Racine and Sheboygan Area VOC and NOX Emissions for Maintenance Year 2022
[tpd]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Area Nonroad Onroad Total
County -----------------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine Area........... 19.61 51.57 59.83 13.51 23.55 21.13 15.98 31.91 118.97 118.12
Kenosha County.............. 0.65 17.68 3.50 0.72 1.84 1.94 1.41 2.64 7.40 22.98
Milwaukee County............ 11.22 31.93 21.88 6.03 7.48 7.76 6.78 14.18 47.36 59.90
Ozaukee County.............. 0.63 0.76 4.33 0.85 1.19 1.83 0.95 1.88 7.10 5.32
Racine County............... 1.52 0.39 6.63 1.17 2.44 2.57 1.58 3.00 12.17 7.13
Washington County........... 0.53 0.05 10.43 1.20 2.52 1.59 1.36 2.69 14.84 5.53
Waukesha County............. 5.06 0.76 13.06 3.54 8.08 5.44 3.90 7.52 30.10 17.26
Sheboygan Area (Sheboygan 3.677 10.000 7.256 1.074 2.189 1.876 1.615 2.778 14.737 15.728
County)....................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 7--Comparison of Milwaukee-Racine and Sheboygan Area 2008, 2015 and 2022 VOC and NOX Emissions
[tpd]
--------------------------------------------------------------------------------------------------------------------------------------------------------
VOC NOX
-------------------------------------------------------------------------------------------------
County Net change Net change
2008 2015 2022 (2008-2022) 2008 2015 2022 (2008-2022)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milwaukee-Racine Area................................. 155.76 121.08 118.97 -36.79 192.00 139.80 118.12 -73.88
Point............................................. 12.17 15.89 19.61 7.44 39.16 45.35 51.57 12.41
Area.............................................. 57.22 53.53 59.83 2.61 14.76 13.63 13.51 -1.25
Nonroad........................................... 50.02 30.58 23.55 -26.47 45.34 29.60 21.13 -24.21
Onroad............................................ 36.35 21.08 15.98 -20.37 92.74 51.22 31.91 -60.83
[[Page 6740]]
Sheboygan Area........................................ 17.171 14.750 14.737 -2.434 24.122 19.306 15.728 -8.394
Point............................................. 2.113 2.895 3.677 1.564 12.972 11.486 10.000 -2.972
Area.............................................. 7.064 6.568 7.256 0.192 1.139 1.067 1.074 -0.065
Nonroad........................................... 5.329 3.263 2.189 -3.140 3.689 2.432 1.876 -1.813
Onroad............................................ 2.665 2.024 1.615 -1.050 6.322 4.321 2.778 -3.544
--------------------------------------------------------------------------------------------------------------------------------------------------------
The emission projections show that WDNR does not expect emissions
in the Milwaukee-Racine and Sheboygan areas to exceed the level of the
2008 attainment year inventory during the maintenance period. In the
Milwaukee-Racine area, WDNR projects VOC emissions to decrease by 36.79
tpd and NOX emissions to decrease by 73.88 tpd between 2008
and 2022. In the Sheboygan area, WDNR projects VOC emissions to
decrease by 2.434 tpd and NOX emissions to decrease by 8.394
tpd between 2008 and 2022.
Further, ozone modeling performed by the Lake Michigan Air
Directors Consortium supports the conclusion that the Milwaukee-Racine
and Sheboygan areas will maintain the 1997 8-hour ozone standard
throughout the maintenance period. Peak modeled ozone levels in the
Milwaukee-Racine area for 2012 and 2018 are 0.080 ppm, and 0.077 ppm,
respectively. Peak modeled ozone levels in the Sheboygan area for 2012
and 2018 are 0.081 ppm, and 0.076 ppm, respectively. These projected
ozone levels were modeled applying only legally enforceable controls;
e.g., consent decrees, rules, the NOX SIP Call, Federal
motor vehicle control programs, etc.
As part of its maintenance plans, the state elected to include
``safety margins'' for the areas. 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 Milwaukee-Racine and
Sheboygan areas attained the 8-hour ozone NAAQS during the 2006-2008,
2007-2009, and 2008-2010 time periods. Wisconsin used 2008 as the
attainment level of emissions for the areas. In the maintenance plans,
WDNR projected emission levels for 2022. For the Milwaukee-Racine area,
the emissions from point, area, nonroad, and onroad mobile sources in
2008 equaled 155.76 tpd of VOC. WDNR projected VOC emissions for the
year 2022 to be 118.97 tpd of VOC. The SIP submission demonstrates that
the Milwaukee-Racine 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, 36.79 tpd of VOC
for 2022. By this same method, for the Milwaukee-Racine area, 73.88 tpd
(i.e., 192.00 tpd less 118.12 tpd) is the safety margin for
NOX for 2022. For the Sheboygan area, the safety margin for
2022 is 2.434 tpd of VOC and 8.394 tpd of NOX. 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 ten ozone monitors in the Milwaukee-
Racine area and one monitor in the Sheboygan area. WDNR has committed
to continue to monitor ozone levels in the areas. WDNR will work with
EPA should changes in siting become necessary. Wisconsin remains
obligated to meet monitoring requirements and continue to quality
assure monitoring data in accordance with 40 CFR part 58, and to enter
all data into the AQS in accordance with Federal guidelines.
e. Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the Milwaukee-Racine and
Sheboygan areas 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 Milwaukee-Racine and Sheboygan consists of plans
to continue ambient ozone monitoring in accordance with the
requirements of 40 CFR part 58. WDNR will also continue to develop and
submit periodic emission inventories as required by the Federal
Consolidated Emissions Reporting Rule (67 FR 39602, June 10, 2002) to
track future levels of emissions.
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 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
contingency plans for the Milwaukee-Racine and Sheboygan areas 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 evaluate
existing but not fully implemented, forthcoming, and, if necessary, new
control measures to correct the violation of the standard within 18
months. Wisconsin has confirmed EPA's interpretation that this
commitment means that the measure will be adopted and implemented
within 18 months of the triggering event. In addition, it is EPA's
[[Page 6741]]
understanding that to acceptably address a violation of the standard,
existing and forthcoming control measures must be in excess of
emissions reductions included in the projected maintenance inventories.
WDNR included the following list of potential contingency measures
in its maintenance plans:
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;
ii. Develop an anti-idling control program for mobile sources
targeting diesel vehicles;
iii. Adopt a rule reducing VOC content in architectural, industrial
and maintenance coatings; and
iv. Adopt a rule reducing VOC content in commercial and consumer
products.
g. Provisions for Future Updates of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, WDNR commits to submit
to the EPA updated ozone maintenance plans eight years after
redesignation of the Milwaukee-Racine and Sheboygan areas to cover an
additional ten-year period beyond the initial ten-year maintenance
period. As required by section 175A of the CAA, Wisconsin has committed
to retain the VOC and NOX control measures contained in the
SIP prior to redesignation.
EPA has concluded that the maintenance plans adequately address the
five basic components of a maintenance plan: Attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and a contingency plan. Thus EPA proposes to find
that the maintenance plan SIP revisions submitted by Wisconsin for the
Milwaukee-Racine and Sheboygan areas meet the requirements of section
175A of the CAA.
B. Adequacy of Wisconsin's MVEBs
1. How are MVEBs developed and what are the MVEBs for the Milwaukee-
Racine and Sheboygan areas?
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., RFP 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 onroad transportation sources. The MVEBs are the portions of the
total allowable emissions that are allocated to highway and transit
vehicle use that, 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).
Under section 176(c) of the CAA, new transportation projects that
receive Federal funding or support, such as the construction of new
highways, must ``conform'' to (i.e., be consistent with) the SIP.
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 approve or find that the MVEBs are ``adequate'' for use
in determining transportation conformity before the MVEBs can be used.
Once EPA affirmatively approves or finds the submitted MVEBs to be
adequate for transportation conformity purposes, the MVEBs must be 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 taking action on the MVEB. The
process for determining the adequacy of submitted SIP MVEBs is codified
at 40 CFR 93.118.
The maintenance plans submitted by Wisconsin for the Milwaukee-
Racine and Sheboygan areas contain new VOC and NOX MVEBs for
the areas for the years 2015 and 2022. The availability of the SIP
submission with these 2015 and 2022 MVEBs was announced for public
comment on EPA's Adequacy Web site on December 6, 2011, at: https://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public
comment period on adequacy of the 2015 and 2022 MVEBs for the
Milwaukee-Racine and Sheboygan areas closed on January 5, 2012. No
adverse comments on the submittal were received during the adequacy
comment period. The submitted maintenance plan, which included the
MVEBs, was endorsed by the Governor (or his or her designee) and was
subject to a state public hearing. The MVEBS were developed as part of
an interagency consultation process which includes Federal, state, and
local agencies. The MVEBS were clearly identified and precisely
quantified. These MVEBs, when considered together with all other
emissions sources, are consistent with maintenance of the 1997 8-hour
ozone standard.
EPA, through this rulemaking, has found adequate and is proposing
to approve the MVEBs for use to determine transportation conformity in
the Milwaukee-Racine and Sheboygan areas, because EPA has determined
that the areas 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 2015 MVEBs for the
Milwaukee-Racine and Sheboygan areas to be 21.08 tpd for VOC and 51.22
tpd for NOX, and 2.024 tpd for VOC and 4.321 tpd for
NOX, respectively. WDNR has determined the 2022 MVEBs for
the Milwaukee-Racine and Sheboygan areas to be 15.98 tpd for VOC and
31.91 tpd for NOX, and 1.615 tpd for VOC and 2.778 tpd for
NOX, respectively. These MVEBs are consistent with the
onroad mobile source VOC and NOX emissions projected by the
Wisconsin Department of Transportation for 2015 and 2022, as summarized
in Table 7 above. Wisconsin has demonstrated that the Milwaukee-Racine
area can maintain the 8-hour ozone NAAQS with mobile source emissions
of 21.08 tpd and 15.98 tpd of VOC and 51.22 tpd and 31.91 tpd of
NOX in 2015 and 2022, respectively, since emissions will
remain under attainment year emission levels. Wisconsin has
demonstrated that the Sheboygan area can maintain the 8-hour ozone
NAAQS with mobile source
[[Page 6742]]
emissions of 2.024 tpd and 1.615 tpd of VOC and 4.321 tpd and 2.778 tpd
of NOX in 2015 and 2022, respectively, since emissions will
remain under attainment year emission levels.
C. 2005 Comprehensive Emissions Inventory
As discussed above, section 182(a)(1) of the CAA requires states
containing areas classified as marginal and above to submit a
comprehensive emissions inventory. As part of Wisconsin's redesignation
request for the Milwaukee-Racine and Sheboygan areas, the state
submitted a 2005 comprehensive emissions inventory. Emissions contained
in the submittal cover the general source categories of point sources,
area sources, nonroad mobile sources and onroad mobile sources.
WDNR developed the point source inventory using annually reported
point source emissions, EPA's Clean Air Markets Database and EPA
techniques for emissions calculation. Where feasible, Federal, state
and local controls were factored into the emission calculations.
Emissions were estimated by collecting process-level information from
each facility that qualifies for inclusion in the Wisconsin's point
source database.
The area source inventory was created by backcasting Wisconsin's
2008 emissions inventory that WDNR submitted to EPA for the National
Emissions Inventory. The backcasting factors were primarily based on
growth factors from the EGAS model. If growth factors were not
available for source classification code, population based growth
factors were used.
The nonroad mobile inventory was created using NMIM (2009/05/04
version). In addition, emissions estimates were developed for
commercial marine vesels, aircraft, and railroads, three nonroad
categories not included in the model. Through LADCO, Pechan, an
independent contractor, provided marine and rail emission estimates.
Aircraft emissions were calculated using the Federal Aviation
Administration's Emissions and Dispersion Modeling System.
The Onroad mobile source inventory was developed using EPA's
MOVES2010a model. Emissions estimates were made in accordance with the
User Guide for MOVES2010a \4\ and Technical Guidance on the Use of
MOVES2010 for Emission Inventory Preparation in State Implementation
Plans and Transportation Conformity \5\.
---------------------------------------------------------------------------
\4\ U.S. EPA, Office of Transportation and Air Quality,
Assessment and Standards Division, August 2010, EPA-420-B-10-036.
\5\ U.S. EPA, Office of Transportation and Air Quality,
Transportation and Regional Programs Division, April 2010, EPA-420-
B-10-023.
---------------------------------------------------------------------------
The 2005 emissions estimates are summarized in Table 2, above. EPA
is proposing to approve the 2005 emissions inventory as meeting the
section 182(a)(1) comprehensive emissions inventory requirement for the
Milwaukee-Racine and Sheboygan areas.
VI. Summary of Actions
After evaluating the redesignation requests submitted by Wisconsin,
EPA concludes that the requests meet the redesignation criteria set
forth in section 107(d)(3)(E) of the CAA. Therefore, EPA is proposing
to approve the redesignation of the Milwaukee-Racine and Sheboygan
areas from nonattainment to attainment for the 1997 8-hour ozone NAAQS.
EPA is also proposing to approve Wisconsin's maintenance plan SIP
revisions for the Milwaukee-Racine and Sheboygan areas. EPA's proposed
approval of the maintenance plans is based on the state's demonstration
that the plans meet the requirements of section 175A of the CAA, as
described more fully above. EPA is also proposing to approve WDNR's
2005 comprehensive emissions inventories for the Milwaukee-Racine and
Sheboygan areas as meeting the requirements of section 182(a)(1) of the
CAA. Finally, EPA finds adequate under 40 CFR 93.118(e) and is
proposing to approve Wisconsin's 2015 and 2022 MVEBs for the Milwaukee-
Racine and Sheboygan areas.
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on tribes, impact any existing sources of air pollution on tribal
lands, nor impair the maintenance of ozone national ambient air quality
standards in tribal lands. However, because there are tribal lands
located in Milwaukee County, we provided the affected tribe with the
opportunity to consult with EPA on the redesignation. The affected
tribe raised no concerns with the proposed rule.
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.
[[Page 6743]]
Dated: January 31, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-2989 Filed 2-8-12; 8:45 am]
BILLING CODE 6560-50-P
