Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of the Milwaukee-Racine Area to Attainment for 1997 8-Hour Ozone Standard, 45252-45262 [2012-18091]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2009–0730; FRL–9702–9]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; Wisconsin; Redesignation
of the Milwaukee-Racine Area to
Attainment for 1997 8-Hour Ozone
Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving a request
from the Wisconsin Department of
Natural Resources (WDNR) to
redesignate the Milwaukee-Racine area
to attainment for the 1997 8-hour
National Ambient Air Quality Standard
(NAAQS or standard). The MilwaukeeRacine area includes Milwaukee,
Ozaukee, Racine, Washington,
Waukesha, and Kenosha Counties.
WDNR submitted this request on
September 11, 2009, and supplemented
the submittal on November 16, 2011.
These submittals also requested the
redesignation of the Sheboygan area
(Sheboygan County) to attainment for
the 1997 8-hour ozone NAAQS. EPA
proposed to approve the redesignation
of both areas on February 9, 2012, and
provided a 30-day review and comment
period. EPA received comments
submitted on behalf of Sierra Club and
Midwest Environmental Defense Center
and from the Wisconsin Manufacturers
and Commerce. EPA is not taking final
action on the Sheboygan redesignation
request at this time because preliminary
2012 ozone monitoring data indicate
that the area has violated the 1997
standard. In addition to approving the
redesignation of the Milwaukee-Racine
area, EPA is taking several other related
actions. EPA is approving, as a revision
to the Wisconsin State Implementation
Plan (SIP), the State’s plan for
maintaining the 1997 8-hour ozone
standard through 2022 in the
Milwaukee-Racine area. EPA is
approving the 2005 emissions
inventories for the Milwaukee-Racine
and Sheboygan areas as meeting the
comprehensive emissions inventory
requirement of the Clean Air Act (CAA
or Act). Finally, EPA finds adequate and
is approving the State’s 2015 and 2022
Motor Vehicle Emission Budgets
(MVEBs) for the Milwaukee-Racine area.
DATES: Effective Date: This rule is
effective on July 31, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket ID
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SUMMARY:
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No. EPA–R05–OAR–2009–0730. All
documents in the docket are listed on
the www.regulations.gov web site.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
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), Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 886–1767,
dagostino.kathleen@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What is the background for this rule?
II. What comments did we receive on the
proposed rule?
III. What actions is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background for this rule?
On July 18, 1997 (62 FR 38856), EPA
promulgated an 8-hour ozone standard
of 0.08 parts per million (ppm). EPA
published a final rule designating and
classifying areas under the 1997 8-hour
ozone NAAQS on April 30, 2004 (69 FR
23857). In that rulemaking, the
Milwaukee-Racine area was designated
as nonattainment for the 1997 8-hour
ozone standard and classified as a
moderate nonattainment area under
subpart 2 of part D of the CAA (69 FR
23857, 23947).
On September 11, 2009, WDNR
requested redesignation of the
Milwaukee-Racine and Sheboygan areas
to attainment of the 1997 8-hour ozone
standard based on ozone data for the
period of 2006–2008. On November 16,
2011, WDNR supplemented the original
ozone redesignation requests, revising
the mobile source emission estimates
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using EPA’s on-road mobile source
emissions model, MOVES, and
extending the demonstration of
maintenance of the ozone standard
through 2022, with new MVEBs, but
without relying on emission reductions
resulting from implementation of EPA’s
Clean Air Interstate Rule (CAIR) or
Cross-State Air Pollution Rule (CSAPR).
On March 1, 2011 (76 FR 11080), EPA
issued a final rulemaking determining
that the Milwaukee-Racine and
Sheboygan areas had attained the 1997
8-hour ozone NAAQS based on three
years of complete, quality-assured ozone
data for the 2006–2008, 2007–2009, and
2008–2010 time periods.1
On February 9, 2012 (77 FR 6727),
EPA issued a rulemaking action
proposing to approve Wisconsin’s
requests to redesignate the MilwaukeeRacine and Sheboygan areas to
attainment of the 1997 8-hour ozone
standard, as well as proposing to
approve Wisconsin’s maintenance plans
for the areas, volatile organic compound
(VOC) and nitrogen oxides (NOX)
MVEBs, and VOC and NOX emissions
inventories. This proposed rulemaking
sets forth the basis for determining that
Wisconsin’s redesignation request meets
the CAA requirements for redesignation
of the Milwaukee-Racine area to
attainment for the 1997 8-hour ozone
NAAQS. Air quality monitoring data in
the Milwaukee-Racine and Sheboygan
areas for 2007–2009, 2008–2010, and
2009–2011 show attainment of the 1997
8-hour ozone NAAQS. Preliminary data
available for the Milwaukee area for
2012 are consistent with continued
attainment. Preliminary 2012 data for
the Sheboygan area, however, indicate
that the area is currently violating the
1997 8-hour ozone standard. For this
reason, EPA is not finalizing action on
the State’s request to redesignate the
Sheboygan area at this time. The
primary background for today’s action is
contained in EPA’s February 9, 2012,
proposal to approve Wisconsin’s
redesignation requests, and in EPA’s
March 1, 2011, final rulemaking
determining that the areas have attained
the 1997 8-hour ozone NAAQS, based
on complete, quality-assured monitoring
1 Certified ozone data for 2011 demonstrates that
the areas continued to attain the 1997 8-hour ozone
standard in 2011. EPA recognizes that the ozone
data for 2007–2009 as well as the data for 2010 and
2011 are impacted by emission reductions
associated with the CAIR, which was promulgated
in 2005, but remanded to EPA in 2008. The fact that
the data reflect some reductions associated with the
remanded and therefore not permanent CAIR,
however, is not an impediment to redesignation in
the circumstances presented here where WDNR’s
demonstration and EPA’s own modeling
demonstrates that the areas do not need reductions
associated with the CAIR to attain the 1997 ozone
NAAQS.
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data for 2006–2008, 2007–2009, and
2008–2010 time periods. In these
rulemakings, we noted that under EPA
regulations at 40 CFR 50.10 and 40 CFR
part 50 appendix I, the 1997 8-hour
ozone standard is attained when the 3year average of the annual fourth
highest daily maximum 8-hour average
ozone concentrations is less than or
equal to 0.08 ppm at all ozone
monitoring sites in the area. See 69 FR
23857 (April 30, 2004) for further
information. To support the
redesignation of an area to attainment of
the NAAQS, the ozone data must be
complete for the three attainment years.
The data completeness requirement is
met when the 3-year average of days
with valid ambient monitoring data is
greater than 90 percent, and no single
year has less than 75 percent data
completeness, as determined in
accordance with appendix I of 40 CFR
part 50. Under the CAA, EPA may
redesignate a nonattainment area to
attainment if sufficient, complete,
quality-assured data are available
demonstrating that the area has attained
the standard and if the state meets the
other CAA redesignation requirements
specified in section 107(d)(3)(E) and
section 175A.
The February 9, 2012, proposed
redesignation rulemaking provides a
detailed discussion of how Wisconsin’s
ozone redesignation request for the
Milwaukee-Racine area meets the CAA
requirements for redesignation to
attainment. With the final approval of
its VOC and NOX emissions inventories,
and its VOC Reasonably Available
Control Technology (RACT) regulations,
Wisconsin has met all applicable CAA
requirements for redesignation to
attainment of the area for the 1997 8hour ozone NAAQS. Complete, qualityassured, and certified air quality
monitoring data in the MilwaukeeRacine area for 2009–2011, and
preliminary data for 2012, show that
this area continues to attain the 1997 8hour ozone NAAQS. In the maintenance
plan it submitted for this area,
Wisconsin has demonstrated that
attainment of the 1997 8-hour ozone
NAAQS will be maintained in the
Milwaukee-Racine area through 2022,
with or without the implementation of
CAIR or CSAPR. In addition, modeling
conducted by EPA during the CSAPR
rulemaking demonstrates that in both
2012 and 2014, even without taking into
account reductions associated solely
with CAIR or CSAPR, the counties in
the Milwaukee-Racine nonattainment
area will have air quality that attains the
1997 ozone NAAQS. Finally, Wisconsin
has adopted 2015 and 2022 MVEBs that
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are supported by Wisconsin’s ozone
maintenance demonstrations and
Wisconsin has adopted an ozone
maintenance plan.
II. What comments did we receive on
the proposed rule?
EPA provided a 30-day comment
period for the February 9, 2012,
proposed rule. During the comment
period, Wisconsin Manufacturers and
Commerce submitted comments in
support of the actions and we received
one set of comments objecting to the
redesignation of the Milwaukee-Racine
area submitted on behalf of the Sierra
Club and the Midwest Environmental
Defense Center. The adverse comments
are summarized and addressed below.
Comment 1: The commenter asserts
that the redesignation of the MilwaukeeRacine area to attainment of the 1997 8hour ozone standard would violate the
CAA because the State of Wisconsin and
EPA have not ensured that
nonattainment area New Source Review
(NSR) would apply after redesignation.
The commenter contends that such a
situation conflicts with the language of
section 107(d)(3)(E)(v) of the CAA,
which requires the State to have met all
requirements of part D of the CAA, since
part D includes requirements for NSR.
The commenter argues that the
requirements of section 107(d)(3)(E)(v)
make no sense if the State’s NSR
program is not required to apply in the
area after redesignation. The commenter
further argues that, at a minimum, a
requirement for NSR should be included
in the State’s ozone maintenance plan as
a contingency measure to be
implemented if the area subsequently
violates the 1997 8-hour ozone standard.
The commenter contends that EPA
cannot rely on certain policy
memoranda to support its approval of
the State’s ozone redesignation request
and ozone maintenance plan without
the requirement for the implementation
of the NSR program in the MilwaukeeRacine area after redesignation.
Response 1: As clearly stated in EPA’s
October 14, 1994, policy memorandum
from Mary D. Nichols entitled ‘‘Part D
New Source Review (part D NSR)
Requirements for Areas Requesting
Redesignation to Attainment,’’ ‘‘EPA
believes it is reasonable to interpret
‘measure,’ as used in section 175A(d),
not to include part D NSR.’’ Congress
used the undefined term ‘‘measure’’
differently in different provisions of the
Act, which indicates that the term is
susceptible to more than one
interpretation and that EPA has the
discretion to interpret it in a reasonable
manner in the context of section 175A.
See Greenbaum v. EPA, 370 F.3d 527,
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535–38 (6th Cir. 2004). (Court ‘‘find[s]
persuasive the EPA’s argument that the
very nature of the NSR permit program
supports its interpretation that it is not
intended to be a contingency measure
pursuant to section 175A(d).’’) It is
reasonable to interpret ‘‘measure’’ to
exclude part D NSR in this context
because Prevention of Significant
Deterioration (PSD), a program that is
the corollary of part D NSR for
attainment areas, goes into effect in lieu
of part D NSR upon redesignation. PSD
requires that new sources demonstrate
that emissions from their construction
and operation will not cause or
contribute to a violation of any NAAQS
or PSD increment. The State has
demonstrated that the areas will be able
to maintain the standard without Part D
NSR in effect, and the State’s PSD
program will become effective in the
areas upon redesignation to attainment.
See the rationale set forth at length in
the Nichols Memorandum. See also the
discussions of why full approval and
retention of NSR is not required in
redesignation actions in the following
redesignation rulemakings: 60 FR
12459, 12467–12468 (March 7, 1995)
(Detroit, MI); 61 FR 20458, 20469–20470
(May 7, 1996) (Cleveland-AkronLorrain, OH); 66 FR 53665, 53669
(October 23, 2001) (Louisville, KY); 61
FR 31831, 31836–31837 (June 21, 1996)
(Grand Rapids, MI); 73 FR 29436,
29440–29441 (May 21, 2008) (Kewaunee
County, WI); 77 FR 34819, 34826–34827
(June 12, 2012) (Illinois portion of St.
Louis, MO–IL).
Comment 2: The commenter contends
that the State of Wisconsin does not
have a complete PSD program.
Therefore, the commenter argues that
EPA cannot rely on Wisconsin’s PSD
program being effective and
immediately applicable upon
redesignation of the Milwaukee-Racine
area. For this reason, and the argument
set forth in comment 1 above, the
commenter contends that Wisconsin’s
ozone redesignation request and ozone
maintenance plan do not meet the
requirements of section 107(d)(3)(E) of
the CAA.
The commenter gives the following
reasons (see Comments 2(a)–2(c)) for its
assertion that Wisconsin’s PSD and NSR
programs are inadequate for purposes of
redesignation to attainment.
Comment 2(a): The commenter
contends that Wisconsin’s PSD program
does not comply with the requirement
in EPA’s 1997 8-hour ozone
implementation phase 2 rule that NOX
be considered as an ozone precursor
under PSD. The commenter argues that
the definition in Wisconsin’s NSR and
PSD regulations specifies only VOC to
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be regulated as an ozone precursor. The
commenter claims that this allows new
or modified sources to add or increase
NOX emissions without analyzing their
impacts on ozone levels. The
commenter contends that EPA has
recently found similar SIPs to be
deficient on this basis, and cites EPA’s
rulemaking at 75 FR 79300 (December
20, 2010, Mississippi PSD rules).
Response 2(a): EPA believes that the
commenter is mistaken in its view, and
that in fact Wisconsin interprets and
implements its NSR and PSD
regulations to include NOX as a
precursor for ozone. Wisconsin has an
approved PSD program that includes
ozone as a regulated NSR pollutant. See
NR 405.02(25i), Wisconsin
Administrative Code. While the
commenter is correct in stating that
Wisconsin’s rule does not specifically
list NOX as a precursor for ozone, the
rule does define ‘‘regulated NSR air
contaminant’’ to include ‘‘any air
contaminant for which a national
ambient air quality standard has been
promulgated and any constituents or
precursors for the air contaminants
identified by the administrator * * *.’’
See NR 405.02(25i)(a). EPA has
identified both VOCs and NOX as
precursors to ozone in the definition of
‘‘Regulated NSR Pollutant.’’ See 40 CFR
51.166(b)(49)(i)(a), 52.21(b)(50)(i)(a).
Wisconsin also sets a table of
significant emissions rates for
individual pollutants in the definition
of significant at NR 405.02(27)(a). This
table sets the significant emissions rate
for ozone at 40 tons per year (tpy) of
VOCs and separately sets the significant
emissions rate for NOx at 40 tpy.
Wisconsin interprets its 40 tpy
significant emissions rate for nitrogen
oxides contained in NR 405.02(27)(a) to
apply to require both NO2 and ozone air
quality analyses when emissions meet
or exceed that emissions rate. Therefore,
an increase in NOX emissions of 40 tpy
or more will trigger the requirements to:
(1) Obtain a PSD permit for ozone;
(2) to perform an air quality analysis
that demonstrates that the proposed
source or modification will not cause or
contribute to a violation of the ozone
NAAQS; and (3) to apply best available
control technology (BACT) for NOX.
Wisconsin has confirmed this
interpretation in a May 18, 2012, letter
(hereafter, ‘‘Sponseller letter’’) and a
June 6, 2012, email from Bart
Sponseller, Director of the Bureau of Air
Management, WDNR to Douglas
Aburano, Chief of the Attainment
Planning and Maintenance Section, Air
Programs Branch, EPA Region 5.
Although EPA is requiring Wisconsin to
make revisions to its PSD regulations to
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specifically address NOX as a precursor
to ozone for infrastructure SIP purposes,
this interpretation means that
Wisconsin is, in practice, requiring air
quality analyses for ozone under its
state PSD regulations consistent with
Federal PSD regulations.
Accordingly, the fact that Wisconsin’s
approved PSD SIP does not yet
explicitly identify NOX as a precursor to
ozone as required by EPA’s Phase 2
ozone implementation rule does not
prevent the program from addressing
and helping to assure maintenance of
the ozone standard in accordance with
CAA section 175A.
EPA notes that Wisconsin is currently
in the process of adopting permanent
rules for submission to EPA to add NOX
as an explicit precursor to ozone
consistent with the Federal regulations.
Irrespective of the State’s ongoing
regulatory actions, EPA concludes that
the features of Wisconsin’s currently
approved PSD program cited by the
commenter do not detract from the
program’s adequacy for purposes of
maintenance of the standard and
redesignation of the area. In light of the
assurances provided to EPA in the
Sponseller letter and email, Wisconsin’s
currently approved PSD program is
adequate for purposes of assuring
maintenance of the 1997 8-hour ozone
standard as required by section 175A.
Comment 2(b): The commenter asserts
that the State of Wisconsin does not
conduct ambient air quality analyses for
ozone standard compliance when
issuing PSD permits, and that WDNR
does not model ozone impacts, nor does
it conduct other analyses of ozone
impacts when issuing permits. The
commenter therefore argues that
Wisconsin’s PSD program does not
ensure that new and modified sources
will not cause additional ozone
standard violations.
Response 2(b): As discussed in
response 2(a), Wisconsin has
communicated to EPA that the State is
implementing its existing regulations
consistent with the requirements of the
Federal PSD regulations that require an
air quality analysis for ozone if a
significant emissions rate of 40 tpy for
VOC and/or NOX is reached or
exceeded.
Furthermore, Federal PSD regulations
at 40 CFR 51.166(k), (l) and (m) and 40
CFR 52.21(k), (l) and (m) contain
requirements for ambient impact
analyses for proposed major stationary
sources and major modifications to
obtain a PSD permit. These
requirements apply for ozone when
such sources or modifications trigger
PSD review for ozone, but do not
necessarily require quantitative
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modeling for ozone in all cases.2 See
Letter from Gina McCarthy, EPA
Assistant Administrator, Office of Air
and Radiation, to Robert Ukeiley (Jan. 4,
2012) at 2; In Re CF&I Steel, L.P. dba
EVRAZ Rocky Mountain Steel, Petition
Number VIII–2011–01 (Order on
Petition) (May 31, 2012) at 21–22. The
regulations at 40 CFR 51.166(l) state that
for air quality models the SIP shall
provide for procedures which specify
that all applications of air quality
modeling involved in this subpart shall
be based on the applicable models, data
bases, and other requirements specified
in appendix W of part 51 (Guideline on
Air Quality Models). Where an air
quality model specified in appendix W
of part 51 (Guideline on Air Quality
Models) is inappropriate, the model
may be modified or another model
substituted. Such a modification or
substitution of a model may be made on
a case-by-case basis or, where
appropriate, on a generic basis for a
specific State program. Written approval
of the Administrator must be obtained
for any modification or substitution. In
addition, use of a modified or
substituted model must be subject to
notice and opportunity for public
comment under procedures set forth in
§ 51.102. See also 40 CFR 52.21(l).
The above-referenced parts of 40 CFR
part 51 and 52 contain the umbrella
components for ambient air quality and
source impact analyses for PSD
permitting. PSD requirements for SIPs
are found in 40 CFR 51.166. As
discussed above, sections 51.166(l) and
52.21(l), and Wisconsin rule NR 405.10,
refer to 40 CFR part 51, appendix W for
the appropriate method to utilize for the
ambient impact assessment. 40 CFR part
51, appendix W is the Guideline on Air
Quality Models and Section 1.0.a. states
that the Guideline recommends air
quality modeling techniques that should
be applied to State Implementation Plan
(SIP) revisions for existing sources and
to new source review (NSR), including
prevention of significant deterioration
(PSD). {footnotes not included}
Applicable only to criteria air
pollutants, it is intended for use by EPA
Regional Offices in judging the
adequacy of modeling analyses
performed by EPA, State and local
agencies, and by industry. The
Guideline is not intended to be a
compendium of modeling techniques.
Rather, it should serve as a common
measure of acceptable technical analysis
when support by sound scientific
judgment.
2 Wisconsin’s rules at NR 405.09, NR 405.10 and
NR 405.11 meet the requirements of 40 CFR
51.166(k), (l), and (m), respectively.
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Appendix W, section 5.2.1 includes
the Guideline recommendations for
models to be utilized in assessing
ambient air quality impacts for ozone.
Specifically, Section 5.2.1.c states that
choice of methods used to assess the
impact of an individual source depends
on the nature of the source and its
emissions. Thus, model users should
consult with the Regional Office to
determine the most suitable approach
on a case-by-case basis (subsection
3.2.2).
Appendix W, section 5.2.1.c provides
that the state and local permitting
authorities and permitting applicants
should work with the appropriate EPA
Regional Office on a case-by-case basis
to determine an adequate method for
performing an air quality analysis for
assessing ozone impacts. Due to the
complexity of modeling ozone and the
dependency on the regional
characteristics of atmospheric
conditions, EPA believes this is an
appropriate approach, rather than
specifying a method for assessing single
source ozone impacts, which may not be
appropriate in all circumstances.3
Instead, the choice of method ‘‘depends
on the nature of the source and its
emissions. Thus, model users should
consult with the Regional Office to
determine the most suitable approach
on a case-by-case basis’’ appendix W,
section 5.2.1.c. Thus, appendix W
allows flexibility through the
consultation process to determine either
modeling based or other analysis
techniques may be acceptable. Based on
an evaluation of the source, its
emissions and background ozone
concentrations, an ozone impact
analysis other than modeling may be
required. Therefore, permitting
authorities should consult and work
with EPA Regional Offices as described
in appendix W, including section 3.0.b
and c, 3.2.2, and 3.3, to determine the
appropriate approach to assess ozone
impacts for each PSD required
evaluation. Although EPA has not
selected one particular preferred model
3 EPA has explained that given the complexities
of ozone formation, its judgment has been that it
was not technically sound to designate with
particularity specific models that must be used to
assess the impacts of a single source on ozone
concentrations, but rather has provided a
consultation process in appendix W for determining
particular models or other analytical techniques
that should be used on a case-by-case basis. See
Letter from Gina McCarthy, EPA Assistant
Administrator, Office of Air and Radiation to Robert
Ukeiley (Jan. 4, 2012) at 2. However, EPA granted
a petition for rulemaking on January 4, 2012, stating
that it would engage in a rulemaking process to
consider whether updates to EPA’s Guideline on Air
Quality Models as published in appendix W are
warranted, and, as appropriate, to incorporate new
analytical techniques or models for ozone. Id at 1.
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in appendix A of appendix W
(Summaries of Preferred Air Quality
Models) for conducting ozone impact
analyses for individual sources,
permitting authorities in Wisconsin
must comply with the appropriate PSD
SIP requirements with respect to ozone.
EPA has previously approved the
State’s PSD program.4 EPA expects
Wisconsin to consult with staff in the
Region 5 Office on a case-by-case basis
for permitting purposes to determine
appropriate methods for assessing the
impacts from specific sources on ozone
concentrations. An example of such
consultation is the permitting action for
Aarrowcast, Inc. in Shawano,
Wisconsin.
Comment 2(c): The commenter
contends that the Wisconsin SIP is
deficient because it contains an
unacceptable definition of ‘‘major
modification’’ for purposes of NSR and
PSD for sources involving fuel change.
The commenter cites a June 17, 2009,
letter from EPA to WDNR noting this
definition problem in the Wisconsin
SIP. The commenter asserts that because
of this problem, emissions can increase
as a result of non-exempt fuel changes
without going through a PSD analysis,
meaning that PSD provides no
protection for the ozone NAAQS in
some situations.
Response 2(c): ‘‘Major modification’’
as it relates to PSD is generally defined
in NR 405.02(21) of Wisconsin’s SIP.
The exemptions to ‘‘physical change’’ or
‘‘change in the method of operation’’ are
contained at NR 405.02(21)(b). One
exemption is the ability of a source
capable of accommodating different
types of fuels before 1975 to switch the
type of fuel burned, unless prohibited
by a restriction in a permit established
after 1975.
EPA regulations contained at 40 CFR
51.166(b)(2)(iii)(e)(1) and (2) specifically
prescribe when use of an alternative fuel
is not considered a physical change for
purposes of defining a ‘‘major
modification.’’ These regulations require
that a physical change or change in the
method shall not include use of an
alternative fuel or raw material by a
stationary source which the source was
capable of accommodating before
January 6, 1975, unless such change
4 See, ‘‘Approval and Promulgation of
Implementation Plans; Wisconsin,’’ 64 FR 28745
(May 27, 1999). While the Phase 2 Rule obligates
states to make explicit regulatory changes in order
to clarify and remove any ambiguity concerning the
requirement that NOX be treated as a precursor to
ozone in permitting contexts, the State has
authority in its PSD SIP to treat NOX as a precursor
to ozone in permitting decisions, and the State is
correctly interpreting its PSD and NSR regulations
with regard to inclusion of NOX as a precursor to
ozone as discussed in Response 2(a).
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45255
would be prohibited under any
Federally enforceable permit condition
which was established after January 6,
1975 pursuant to 40 CFR 52.21 or under
regulations approved pursuant to 40
CFR part 51, subpart I, or 40 CFR
51.166; or the source is approved to use
the fuel under any permit issued under
40 CFR 52.21 or under regulations
approved pursuant to 40 CFR 51.166.
The Wisconsin regulations set out the
conditions for the fuel change
exemption as follows:
The source was capable of accommodating
the alternative fuel or raw material before
January 6, 1975, unless the change would be
prohibited under any federally enforceable
permit condition which was established after
January 6, 1975 pursuant to this chapter or
ch. NR 406 or 408 or under an operation
permit issued pursuant to ch. NR 407.
[Or, t]he source is approved to use the
alternative fuel or raw material under any
permit issued under this chapter or ch. NR
406, 407, or 408. See NR 405.02(21)(b)(5).
The Wisconsin rule is similar to the
Federal rule, but differs by substituting
references to Wisconsin Administrative
Code sections, and omitting reference to
permits issued under the Federal
program at 40 CFR 52.21.
The commenter raised concerns that
failure to cite Federal regulations results
in the loss of prohibitions on fuel use
exemptions that may have been
contained in Federally-issued PSD
permits, issued prior to EPA’s approval
of Wisconsin’s PSD SIP, resulting in
more exemptions to the definition of
‘‘major modification’’ than allowed by
the Federal rules.
WDNR states that under its title V
operating permit program, all applicable
requirements to a source are included in
its operation permit. As a result, WDNR
states that it clearly recognizes that
requirements contained in a Federallyissued PSD permit would be applicable
requirements to the source and that they
would be included in the source’s title
V operating permit, therefore making
the requirements fully enforceable
under State and Federal law. WDNR has
taken the position that this is a very
narrow issue and has asserted that ‘‘to
its knowledge it is not aware of a single
situation where an omission has
occurred in practice.’’ See Sponseller
letter. While the commenter contends
that emissions can ‘‘increase from nonexempt fuel changes without going
through a PSD analysis,’’ the commenter
has not provided information to support
this assertion nor has he identified any
instance where any such emissions
increase has actually occurred.
Although EPA is requiring Wisconsin
to revise its PSD regulations to
specifically address this issue for
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infrastructure SIP purposes, EPA agrees
with WDNR that this issue is a very
narrow one, and that an omission in
practice is perhaps nonexistent. EPA
recognizes that in practice, WDNR has
the authority and means to ensure
adherence to the prohibitions on fuel
use exemptions in certain instances,
consistent with our own definition of
‘‘major modification.’’ Therefore, EPA
concludes that the features of
Wisconsin’s current PSD program cited
by the commenter do not detract from
the program’s adequacy for purposes of
maintenance of the standard and
redesignation of the area.
Comment 3: The commenter asserts
that, besides PSD and NSR deficiencies,
the Wisconsin SIP contains several
other deficiencies that are contrary to
the requirements of section 110 of the
CAA.
The commenter claims that the
Wisconsin SIP contains a source startup
and shutdown excess emissions
exemption that EPA has found to be not
approvable and in conflict with section
110 of the CAA. The commenter also
asserts that the Wisconsin SIP contains
‘‘illegal’’ Director’s Discretion
provisions and that EPA has interpreted
section 110 as prohibiting such SIP
provisions. The commenter claims that
the Wisconsin Administrative Code
contains such provisions at NR
436.03(2), NR 436.04, and NR 436.06.
The commenter asserts that, historically,
EPA has determined that it cannot
approve SIPs as being adequate when
they contain such Director’s Discretion
provisions that have the potential to
change the stringency of the SIP.
Response 3: The issue before EPA in
the current rulemaking action is a
redesignation for the Milwaukee-Racine
area for the 1997 8-hour ozone standard,
including the maintenance plan, and
comprehensive emissions inventories.
The SIP provisions identified by the
commenter are not currently being
proposed for revision as part of the
redesignation submittals. Because the
rules cited by the commenter are not
pending before EPA and/or are not the
subject of this rulemaking action, EPA
did not undertake a full SIP review of
the individual provisions. It has long
been established that EPA may rely on
prior SIP approvals in approving a
redesignation request plus any
additional measures it may approve in
conjunction with a redesignation action.
See e.g., page 3 of the September 4,
1992, memorandum from John Calcagni
entitled ‘‘Procedures for Processing
Requests to Redesignate Areas to
Attainment’’ (Calcagni Memorandum);
Wall v. EPA, 265 F.3d 426 (6th Cir.
2001); Southwestern Pennsylvania
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Growth Alliance v. Browner, 144 F.3d
984 (6th Cir. 1998); 68 FR 25413, 25426
(May 12, 2003) (St. Louis redesignation).
The CAA does not require EPA in the
context of a redesignation to attainment
to revisit and address existing SIP
provisions, and envisions that EPA may
address such issues separately and
outside the context of action on a
redesignation request.
The CAA provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These statutory tools allow EPA to take
appropriate tailored action, depending
upon the nature and severity of the
alleged SIP deficiency. Section 110(k)(5)
authorizes EPA to issue a ‘‘SIP call’’
whenever the Agency determines that a
state’s SIP is substantially inadequate to
attain or maintain the NAAQS, to
mitigate interstate transport, or
otherwise to comply with the CAA.5
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.6
Comment 4: The commenter argues
that EPA has not demonstrated that the
reduction in ozone pollution in the
Milwaukee-Racine area is due to
permanent and enforceable emission
reductions. The bases for the
commenter’s assertion are set forth in
comments 4(a) through (f).
Comment 4a: The commenter asserts
that comparing 2005 and 2008
emissions in the Milwaukee-Racine
ozone nonattainment area is not an
adequate method to demonstrate that
the ozone air quality improvement in
this area is due to the implementation
of permanent and enforceable emission
control measures, in keeping with
section 107(d)(3)(E)(iii) of the CAA. The
commenter contends that the calculated
change in VOC and NOX emissions
between 2005 and 2008 does not show
that the emission changes were due to
permanent and enforceable emission
5 For example, EPA has recently issued a SIP call
in Utah to rectify a specific SIP deficiency related
to a startup, shutdown and malfunction issue. See,
‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21639 (April
18, 2011).
6 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82,536 (December 30, 2010). EPA has
previously used its authority under CAA 110(k)(6)
to remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
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reductions, as opposed to temporary
emission reductions and/or emission
reductions due to factory output
slowdowns (under utilization of factory
capacity) or recession-related output
and transportation declines.
To support the commenter’s assertion,
the commenter compares 2008
permitted (allowable) NOX emissions for
electric power plants in the MilwaukeeRacine area with the total point source
NOX emissions documented by EPA for
this area in EPA’s Milwaukee-Racine
area ozone redesignation proposed rule.
The commenter shows that the
permitted NOX emissions from only the
electric power plants in the MilwaukeeRacine area exceed the actual 2008 NOX
emissions for all point sources in the
Milwaukee-Racine area reported by EPA
in the proposed rule for the
redesignation of the Milwaukee-Racine
area to attainment of the 1997 8-hour
ozone standard, 77 FR 6738. The
commenter contends that the
comparison of permitted NOX emissions
(electric generating plants) and actual,
reported NOX emissions (all point
sources) shows that facilities can
lawfully emit at much higher rates.
Therefore, the commenter asserts that
EPA has not properly considered
permanent and enforceable emission
reductions.
Response 4a: EPA’s longstanding
practice and policy 7 provide for states
to demonstrate permanent and
enforceable emissions reductions by
comparing nonattainment area
emissions occurring during the
nonattainment period with emissions in
the area during the attainment period.
Therefore, selecting 2008 as a
representative attainment year, and
comparing emissions for this year to
those of a representative year during the
nonattainment period, 2005, is an
appropriate and long-established
approach to demonstrate that emission
reductions occurred in the area between
the years of nonattainment and
attainment. These reductions, therefore,
can be seen to account for the observed
air quality improvement.
As discussed in the proposed rule at
77 FR 6727, 6737–6738 (February 9,
2012), Wisconsin and upwind areas
have implemented a number of
permanent and enforceable regulatory
control measures which have reduced
emissions and resulted in a
corresponding improvement in air
quality. These controls include
regulations to control NOX emissions at
electric utilities and large industrial
combustion sources and establish NOX
emissions standards for new sources;
7 See
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Tier 2 emission standards for vehicles;
and the nonroad diesel rule. In addition
a broad range of emission sectors were
required to reduce ozone precursors as
a result of being subject to Federal new
source performance standards, national
emissions standards for hazardous air
pollutants, and maximum achievable
control technology standards with
compliance requirements that take effect
over the relevant time period. Further,
Federal control measures as well as the
NOX SIP Call have resulted in reduced
ozone precursors being transported into
the area. While the commenter
expressed concerns that the emissions
reductions may be temporary and/or
due to factory output slowdowns
(underutilization of factory capacity) or
recession-related output and
transportation declines, the commenter
has made no demonstration that this is
the case.
With regard to consideration of actual
versus allowable/permitted emission
levels, longstanding practice and EPA
policy support the use of actual
emissions when demonstrating
permanent and enforceable emission
reductions.8 Changes in actual
emissions are more reflective of
emission reductions that in reality
contribute to improvements in
monitored ozone concentrations.
Sources seldom, if ever, emit at
maximum allowable emission levels,
and assuming that all sources
simultaneously operate at maximum
capacity would result in a gross
overestimation of emission levels. For
this reason, EPA believes actual
emissions are the appropriate emission
levels to consider when comparing
nonattainment year emissions with
attainment year emissions.
Comment 4b: The commenter
contends that neither EPA nor the State
of Wisconsin made any calculation of
the amounts of emission reduction that
actually resulted from the
implementation of permanent and
enforceable emission controls. The
commenter asserts that there was no
connection between the reported change
in actual emissions and the enforceable
emission reduction requirements
implemented in the Milwaukee-Racine
area.
The commenter objects to EPA’s
listing of implemented emission control
requirements as a demonstration that
such emission control requirements
have resulted in the observed ozone air
quality improvement in the MilwaukeeRacine area. The commenter states that
EPA has not estimated the emission
impacts of each of the implemented
8 See
emission control requirements and
contends that EPA has not tied such
emissions impacts to the reported
change in actual emissions between
2005 and 2008.
Response 4b: EPA’s conclusion here is
fully supported by the facts and
applicable legal criteria. EPA’s
longstanding practice and policy 9
provides for states to demonstrate
permanent and enforceable emissions
reductions by comparing nonattainment
area emissions occurring during the
nonattainment period with emissions in
the area during the attainment period.
See response 4a.
Therefore, selecting 2008 as a
representative attainment year, and
comparing emissions for this year to
those for a representative year during
the nonattainment period, 2005, is an
appropriate and long-established
approach to establish that emission
reductions occurred in the area between
the years of nonattainment and
attainment. These emission reductions,
therefore, can be seen to account for the
observed air quality improvement.
In developing the attainment year
emissions inventory, the State took into
account permanent and enforceable
emissions control programs being
implemented when estimating
emissions. The change in emissions
from 2005 to 2008 is shown in Table 4
in the proposed rule (77 FR 6727, 6738).
For point sources, the State’s
emissions estimates factored in process
information, operation information and
control factors. Wisconsin adopted NOX
RACT regulations to control NOX
emissions at electric utilities and large
industrial combustion sources and
established NOX emissions standards for
new sources. The regulation of existing
sources was estimated to achieve a 30
ton per day (tpd) reduction in NOX by
2003 and a 55 tpd reduction by 2007,
i.e., approximately a 25 tpd reduction
between 2003, a nonattainment year and
2007, an attainment year.
For area sources, emissions are
strongly associated with population
levels. Therefore, although controls
were considered in area source
calculations, emissions grew slightly
between 2005 and 2008 as a result of
population growth.
Reductions in VOC and NOX
emissions have occurred as a result of
Federal mobile source emission control
measures, with additional emission
reductions expected to occur over the
maintenance period. These measures
include Tier 2 Emission Standards for
Vehicles and Gasoline Sulfur Standards,
the Heavy-Duty Diesel Engine Rule, and
Calcagni Memorandum, pp. 4 and 8–9.
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45257
the Nonroad Diesel Rule. Emissions
reductions from these permanent and
enforceable programs were quantified
by the State in its calculation of the
nonroad and onroad mobile sector
emissions inventories.
For nonroad mobile sources, it is
standard and accepted practice for states
to estimate emissions using an EPAapproved emissions model. Wisconsin
ran EPA’s approved emissions model,
National Mobile Inventory Model
(NMIM), which estimates emissions
while taking into account the effect of
Federal nonroad mobile control
programs and fleet turnover. The NMIM
model showed that between 2005 and
2008, total nonroad VOC and NOX
emissions in the Milwaukee-Racine area
were reduced by approximately 17
percent and 10 percent, respectively.
The emissions estimates generated by
NMIM quantify permanent and
enforceable emissions reductions from
nonroad mobile control programs; it is
not necessary for the state to identify the
portion of these reductions attributable
to each individual control measure.
For onroad mobile sources, it is
standard and accepted practice for states
to estimate emissions using an EPAapproved emissions model and daily
vehicle miles traveled data. Wisconsin
ran EPA’s approved onroad mobile
emissions model, MOVES2010a, which
takes into account the effect of Federal
motor vehicle control programs and
fleet turnover when calculating
emissions estimates. Between 2005 and
2008, onroad VOC and NOX emissions
in the Milwaukee-Racine area were
reduced by approximately 22 percent
and 21 percent, respectively. The
emissions estimates generated by the
MOVES model quantify permanent and
enforceable emissions reductions from
all Federal motor vehicle control
programs; it is not necessary for the
state to identify the portion of these
reductions attributable to each
individual control measure.
Permanent and enforceable emissions
reductions in upwind areas also
contributed to attainment of the 1997 8hour ozone standard in the MilwaukeeRacine area. While Wisconsin did not
quantify these upwind emissions
reductions by state, overall emissions
reductions estimates, by program, are
available. Under the NOX SIP Call,
ozone season NOX emissions were
reduced by approximately 68,000 10 tons
between 2005 and 2008. In addition,
permanent and enforceable reductions
in VOC and NOX emissions have
10 See 2008 NOx Budget Trading Program
Progress Report, https://www.epa.gov/airmarkets/
progress/NBP_4.html.
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occurred in upwind areas from Federal
motor vehicle control programs. Overall
emissions reductions from the
implementation of these programs have
been estimated as follows: Tier 2
Emission Standards for Vehicles and
Gasoline Sulfur Standards, 69–95
percent reduction in NOX and 12–18
percent reduction in VOCs, depending
on vehicle class; the Heavy-Duty Diesel
Engine Rule, 95 percent reduction in
NOX; and the Nonroad Diesel Rule, 90
percent reduction in NOX. Some of
these emission reductions occurred by
the attainment period and additional
emission reductions will occur during
the maintenance period as the fleet
turns over.
It is not necessary for every change in
emissions between the nonattainment
year and the attainment year to be
permanent and enforceable. Rather, the
improvement in air quality necessary for
the area to attain the relevant NAAQS
must be reasonably attributable to
permanent and enforceable reductions
in emissions. In summary, the State has
identified a number of permanent and
enforceable regulatory control measures
which have been implemented in
Wisconsin as well as in upwind areas
and has documented significant
emissions reductions resulting from
these programs. These documented
permanent and enforceable emissions
reductions in combination with four
three-year periods of monitoring data
showing that the Milwaukee-Racine area
is attaining the 1997 8-hour ozone
NAAQS (2006–2008, 2007–2009, 2008–
2010, and 2009–2011) represents an
adequate demonstration that the
improvement in air quality can
reasonably be attributed to the
significant reduction in emissions
resulting from permanent and
enforceable emissions control programs.
Comment 4c: The commenter objects
to EPA’s statement that emission
reductions resulted from Wisconsin’s
implementation of the Rate-Of-Progress
(ROP) plan under the previous 1-hour
ozone standard. The commenter claims
that the ROP plan was implemented
well before 2005, the base year of EPA’s
emission comparison, and that
implementation preceded the years the
area violated the 1997 8-hour ozone
standard.
Response 4c: The commenter’s
objection is unfounded. EPA mentioned
Wisconsin’s ROP plan under the 1-hour
ozone standard in the context of its
discussion of Wisconsin’s stationary
source NOX emission control rules. See
77 FR 6737. Wisconsin estimated that
the State’s stationary NOX emission
control rules, which include emission
controls applied at electric utilities and
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large industrial combustion sources,
would produce NOX emission
reductions between 2005 and 2007.
Wisconsin estimated that these emission
controls would achieve a 30 tpd
reduction in NOX emissions by 2003
and a 55 tpd reduction by 2007, i.e.,
approximately a 25 tpd additional
reduction between 2003 and 2007.
The fact that the State adopted the
NOX control rules in the State’s ROP
plan under the 1-hour ozone standard
and that it began implementing the ROP
plan prior to 2005 does not preclude
NOX emission reductions from these
NOX control rules from occurring after
2005. The implementation of these rules
was phased in over time, resulting in
additional emission reductions for a
number of years after the State’s
adoption of the NOX emissions control
regulations.
Comment 4d: The commenter objects
to EPA’s citing of EPA’s 2004 non-road
diesel engine rule and 2000 and 2007
heavy duty diesel rules without
acknowledging that the emissions
reduction estimates for these rules are
national calculations of the possible
emission impacts once the rules are
fully implemented. The commenter
argues that, since these rules rely on
fleet turnover, they did not result in
major emission reductions between
2005 and 2008. The commenter believes
that EPA erred in not making an
emission reduction estimate for the
local impacts of these rules during the
period of 2005–2008.
Response 4d: There is no basis for
EPA to conclude that the Federal diesel
emission controls cited by the
commenter have had a smaller impact,
on a percentage emission reduction
basis, in the Milwaukee-Racine area
than in other parts of the United States.
EPA has cited national emission
reduction estimates on a percentage
basis for these controls, with the
implication that similar emission
reduction percentages have occurred in
the Milwaukee-Racine area. The
commenter has provided no
independent emission reduction
estimates localized to the MilwaukeeRacine area to refute EPA’s assumption
that such emission reductions have
occurred in the Milwaukee-Racine area.
Lacking such estimates, EPA continues
to believe that the Federal diesel
emission control requirements have
resulted in reduced NOX and VOC
emissions in the Milwaukee-Racine
area, resulting in lower peak ozone
concentrations in this area.
Furthermore, for nonroad mobile
sources, it is a standard and accepted
practice for states to estimate emissions
using an EPA-approved emissions
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model. Wisconsin ran EPA’s approved
emissions model, NMIM, which takes
into account the affect of Federal
nonroad mobile control programs and
fleet turnover when calculating
emissions estimates. Between 2005 and
2008, total nonroad VOC and NOX
emissions in the Milwaukee-Racine area
were reduced by approximately 17
percent and 10 percent, respectively.
For onroad mobile sources, it is
standard and accepted practice for states
to estimate emissions using an EPAapproved emissions model and daily
vehicle miles traveled data. Wisconsin
ran EPA’s approved onroad mobile
emissions model, MOVES2010a, which
takes into account the affect of Federal
motor vehicle control programs and
fleet turnover when calculating
emissions estimates. Between 2005 and
2008, onroad VOC and NOX emissions
in the Milwaukee-Racine area were
reduced by approximately 22 percent
and 21 percent, respectively.
Comment 4e: The commenter objects
to EPA’s reference to the NOX SIP Call
since EPA failed to mention that
Wisconsin sources were not included in
this regulation. The commenter asserts
that the NOX emission reductions
resulting for sources upwind of the
Milwaukee-Racine area are not
permanent and enforceable because the
NOX SIP Call has been replaced and its
replacement has been stayed by the
United States Court of Appeals for the
District of Columbia Circuit (D.C.
Appeals Court). Finally, the commenter
argues that the NOX SIP Call cannot be
relied on to produce permanent and
enforceable NOX emission reductions
because the NOX SIP Call provides for
the use of a cap-and-trade emission
control program, which the D.C.
Appeals Court has held cannot satisfy
area-specific statutory emission control
requirements. NRDC v. EPA, 571 F.3d
1245, 1257 (D.C. Cir. 2009).
Response 4e: The commenter’s
assertion that EPA failed to mention that
Wisconsin sources were not covered by
the NOX SIP Call is incorrect. The
proposal included a footnote explicitly
noting that the State of Wisconsin was
not included in the NOX SIP Call (77 FR
6732 n.3). EPA also did not propose to
rely on and is not relying on any
reductions associated with the NOX SIP
Call in the State of Wisconsin or in the
Milwaukee-Racine ozone nonattainment
area. With regard to NOX emission
reductions in the Milwaukee-Racine
ozone nonattainment area, we note here
that Wisconsin has adopted and
implemented NOX RACT rules for major
NOX sources in the Milwaukee-Racine
ozone nonattainment area. These NOX
RACT rules were approved into the
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Wisconsin SIP by the EPA on October
19, 2010, 75 FR 64155. Wisconsin’s NOX
RACT rules became effective on August
1, 2007, and required source compliance
with the rules by May 1, 2009. Although
sources had until May 1, 2009, to fully
comply with the NOX RACT rules, EPA
believes that some sources began
implementation of the required NOX
emission controls well ahead of this
implementation deadline, resulting in
NOX emission reductions in the
Milwaukee-Racine ozone nonattainment
area by 2008. These NOX emission
controls are permanent and enforceable.
While the NOX SIP Call did not cover
the State of Wisconsin, it did require the
District of Columbia and 22 states to
reduce emissions of NOX and, as EPA
noted in the proposal, these reductions
resulted in lower concentrations of
transported ozone entering the
Milwaukee-Racine area. 77 FR 6737.
Because the area is impacted by the
transport of ozone and its precursors,
upwind reductions in NOX resulting
from the NOX SIP Call are relevant to
these redesignation actions. EPA
disagrees with the commenter’s position
that NOX emission reductions in areas
upwind of the Milwaukee-Racine area
and associated with the NOX SIP Call
cannot be considered to be permanent
and enforceable. The commenter’s first
argument—that the NOX emission
reductions are not permanent and
enforceable because the NOX SIP Call
has been replaced—is based on a
misunderstanding of the relationship
between CAIR and the NOX SIP Call.
While the CAIR ozone-season trading
program replaced the ozone-season NOX
trading program developed in the NOX
SIP Call (70 FR 25290), nothing in the
CAIR relieved states of their NOX SIP
Call obligations. In fact, in the preamble
to CAIR, EPA emphasized that the states
and certain units covered by the NOX
SIP Call but not CAIR must still satisfy
the requirements of the NOX SIP Call.
EPA provided guidance regarding how
such states could meet these
obligations.11 EPA did not suggest that
states could disregard their NOX SIP
Call obligations. (70 FR 25290). For
states covered by the NOX SIP Call, the
CAIR NOX ozone season program
provides a way to continue to meet the
NOX SIP Call obligations for electric
generating units (EGUs) and large nonelectric generating units (nonEGUs). In
addition, the anti-backsliding provisions
of 40 CFR 51.905(f) specifically provide
11 EPA guidance regarding the NO SIP Call
X
transition to CAIR can be found at https://
www.epa.gov/airmarkets/progsregs/cair/faq10.html. EPA guidance regarding the NOX SIP Call
transition for the CSAPR can be found at https://
www.epa.gov/crossstaterule/faqs.html.
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that the provisions of the NOX SIP Call,
including the statewide NOX emission
budgets, continue to apply.
In sum, the requirements of the NOX
SIP Call remain in force. They are
permanent and enforceable as are state
regulations developed to implement the
requirements of the NOX SIP Call.
Further, the fact that the CSAPR which
was to replace CAIR was stayed by the
D.C. Appeals Court is not relevant since
neither CAIR nor the CSAPR replace the
requirements of the NOX SIP Call, and
EPA has determined that the area does
not need any additional reductions from
CAIR or the CSAPR to remain in
attainment.
EPA also disagrees with the
commenter’s argument that the emission
reductions in upwind areas associated
with the NOX SIP Call cannot be
considered permanent and enforceable
because the NOX SIP Call provides for
a trading program. There is no support
for the commenter’s argument that EPA
must ignore all emission reductions in
upwind areas that were achieved by the
NOX SIP Call simply because the
mechanism used to achieve the
emission reductions is an emissions
trading program. As a general matter,
trading programs establish mandatory
caps on emissions and permanently
reduce the total emissions allowed by
sources subject to the programs. The
emission caps and associated controls
are enforced through the associated SIP
rules or Federal Implementation Plans
(FIPs). Any purchase of allowances and
increase in emissions by a utility
necessitates a corresponding sale of
allowances and results in an emission
reduction by another utility. Given the
regional nature of ozone formation and
transport, the emission reductions will
have an air quality benefit that will
compensate, at least in part, for the
impact of any emission increase.
In addition, the case cited by the
commenter, NRDC v. EPA, 571 F.3d
1245 (DC Cir. 2009), does not support
the commenter’s position. The case
addressed EPA’s determination that the
CAA nonattainment area RACT
requirement was satisfied by the NOX
SIP Call trading program. The court held
that, because EPA had not demonstrated
that the trading program would result in
sufficient emission reductions within a
nonattainment area, its determination
that the program satisfied RACT was not
supported. Id. 1256–58. The court
explicitly noted that EPA might be able
to reinstate the provision providing that
compliance with the NOX SIP Call
satisfies NOX RACT for EGUs for
particular nonattainment areas if, upon
conducting a technical analysis, it could
demonstrate that the NOX SIP Call
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45259
results in greater emissions reductions
in a nonattainment area than would be
achieved if RACT-level controls were
installed in that area. Id. at 1258. In this
case, EPA did not assume that the NOX
SIP Call led to any reductions within
the nonattainment area. As such, the
NRDC v. EPA decision is not relevant
here.
Comment 4f: The commenter asserts
that neither EPA nor the State of
Wisconsin have attempted to
demonstrate the connection between the
reported emission reductions and the
observed ozone air quality improvement
in the Milwaukee-Racine area. No
modeling or other acceptable analyses,
including temporal analyses of emission
changes and ozone changes, have been
done to demonstrate that the emission
reductions are responsible for the
observed air quality improvement. No
correlation between emission changes
and ozone changes has been established.
Therefore, EPA has failed to prove that
permanent and enforceable emission
reductions have caused the observed
ozone air quality improvement in the
Milwaukee-Racine area.
Response 4f: EPA’s conclusion that
the ozone improvement in the
Milwaukee-Racine area is due to the
implementation of emission controls is
fully supported by the facts and
applicable legal criteria. As discussed in
greater detail in response 4(b), EPA’s
longstanding practice and policy
provides for states to demonstrate
permanent and enforceable emissions
reductions by comparing nonattainment
area emissions occurring during the
nonattainment period with the
emissions in the area during the
attainment period. Therefore, selecting
2008 as a representative attainment
year, and comparing emissions for this
year to those for a representative year
during the nonattainment period, 2005,
is an appropriate and long-established
approach that demonstrates the
occurrence of emission reductions in
the area between the years of
nonattainment and attainment. These
emission reductions, therefore, can be
seen to account for the observed air
quality improvement.
With respect to the commenter’s
assertion that EPA has not conducted
analyses to prove that emission
reductions between 2005 and 2008 led
to reduced ozone concentrations, as
noted above, comparing emissions for a
representative nonattainment year to
emissions for a representative
attainment year is such a demonstration.
The CAA does not specifically require
the use of modeling in making any such
demonstration and it has not been the
general practice to do so. The State has
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Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations
identified a number of permanent and
enforceable regulatory control measures
that have been implemented in
Wisconsin as well as in upwind areas,
and has documented significant
emissions reductions resulting from
these programs. These documented
permanent and enforceable emissions
reductions in combination with four
three-year periods of monitoring data
showing that the Milwaukee-Racine area
is attaining the 1997 8-hour ozone
NAAQS (2006–2008, 2007–2009, 2008–
2010, and 2009–2011) represents an
adequate demonstration that the
improvement in air quality can
reasonably be attributed to the
significant reduction in emissions
resulting from permanent and
enforceable emissions control programs.
Comment 5: The commenter contends
that EPA has not conducted an adequate
analysis of the effect the ozone
redesignation will have on other
NAAQS. The commenter claims that
EPA has failed to comply with the
requirements of section 110(l), which
requires EPA to conduct such an
analysis whenever it approves a revision
in a state air quality plan.
Response 5: Section 110(l) provides in
part: ‘‘the Administrator shall not
approve a revision of a plan if the
revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress * * *, or any other applicable
requirement of this chapter.’’ As a
general matter, EPA must and does
consider section 110(l) requirements for
every SIP revision, including whether
the revision would ‘‘interfere with’’ any
applicable requirement. See, e.g., 70 FR
53, 57 (January 3, 2005); 70 FR 17029,
17033 (April 4, 2005); 70 FR 28429,
28431 (May 18, 2005); and 70 FR 58119,
58134 (October 5, 2005). The Wisconsin
maintenance plan and redesignation for
the 1997 8-hour ozone standard do not
revise or remove any existing emissions
limit for any NAAQS, nor do they alter
any existing control requirements. On
that basis, EPA concludes that the
redesignation will not interfere with
attainment or maintenance of any air
quality standards. The commenter does
not provide any information to
demonstrate that approval of this
redesignation would have any impact
on the area’s ability to comply with the
any NAAQS. In fact, the maintenance
plan provided with the State’s
submission demonstrates a decline in
ozone precursor emissions over the
timeframe of the initial maintenance
period. As a result, the redesignation
will not relax any existing rules or
limits, nor will the redesignation alter
the status quo air quality. The
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commenter has not provided any reason
that the redesignation might interfere
with attainment of any standard or with
satisfaction of any other requirement of
the CAA, and EPA finds no basis under
section 110(l) for EPA to disapprove the
SIP revision.
III. What actions is EPA taking?
EPA is approving a request from the
State of Wisconsin to redesignate the
Milwaukee-Racine area to attainment of
the 1997 8-hour ozone standard. EPA is
also taking several other related actions.
EPA is approving, as a revision to the
Wisconsin SIP, the State’s plan for
maintaining the 1997 8-hour ozone
standard through 2022 in the area. EPA
is approving the 2005 emissions
inventories as meeting the
comprehensive emissions inventory
requirement of the CAA for the
Milwaukee-Racine and Sheboygan
areas. Finally, EPA finds adequate and
is approving the State’s 2015 and 2022
MVEBs for the Milwaukee-Racine area.
In accordance with 5 U.S.C. 553(d),
EPA finds there is good cause for these
actions to become effective immediately
upon publication. This is because a
delayed effective date is unnecessary
due to the nature of a redesignation to
attainment, which relieves the area from
certain CAA requirements that would
otherwise apply to it. The immediate
effective date for this action is
authorized under both 5 U.S.C.
553(d)(1), which provides that
rulemaking actions may become
effective less than 30 days after
publication if the rule ‘‘grants or
recognizes an exemption or relieves a
restriction,’’ and section 553(d)(3),
which allows an effective date less than
30 days after publication ‘‘as otherwise
provided by the agency for good cause
found and published with the rule.’’
The purpose of the 30-day waiting
period prescribed in section 553(d) is to
give affected parties a reasonable time to
adjust their behavior and prepare before
the final rule takes effect. Today’s rule,
however, does not create any new
regulatory requirements such that
affected parties would need time to
prepare before the rule takes effect.
Rather, today’s rule relieves the state of
planning requirements for this 8-hour
ozone nonattainment area. For these
reasons, EPA finds good cause under 5
U.S.C. 553(d)(3) for these actions to
become effective on the date of
publication of these actions.
IV. Statutory and Executive Order
Reviews
Under the CAA, redesignation of an
area to attainment and the
accompanying approval of a
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maintenance plan under section
107(d)(3)(E) are actions that affect the
status of a geographical area and do not
impose any additional regulatory
requirements on sources beyond those
imposed by state law. A redesignation to
attainment does not in and of itself
create any new requirements, but rather
results in the applicability of
requirements contained in the CAA for
areas that have been redesignated to
attainment. Moreover, the Administrator
is required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. These actions do not impose
additional requirements beyond those
imposed by state law and the CAA. For
that reason, these actions:
• Are 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);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are 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.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory
action subject to Executive Order 13211
(66 FR 28355, May 22, 2001);
• Are 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 Clean Air Act;
and
• Do 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
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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 redesignation.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by October 1, 2012. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Volatile
organic compounds.
40 CFR Part 81
Air pollution control, Environmental
protection, National parks, Wilderness
areas.
Dated: July 11, 2012.
Susan Hedman,
Regional Administrator, Region 5.
Therefore, 40 CFR parts 52 and 81 are
amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
on November 16, 2011. Wisconsin’s
2005 inventories satisfy the emissions
inventory requirements of section
182(a)(1) of the Clean Air Act for the
Milwaukee-Racine and Sheboygan areas
under the 1997 8-hour ozone standard.
(aa) Approval—On September 11,
2009, Wisconsin submitted a request to
redesignate the Milwaukee-Racine area
to attainment of the 1997 8-hour ozone
standard. The state supplemented this
submittal on November 16, 2011. As
part of the redesignation request, the
State submitted a maintenance plan as
required by section 175A of the Clean
Air Act. Elements of the section 175
maintenance plan include a contingency
plan and an obligation to submit a
subsequent maintenance plan revision
in 8 years as required by the Clean Air
Act. The ozone maintenance plan also
establishes 2015 and 2022 Motor
Vehicle Emission Budgets (MVEBs) for
the area. The 2015 MVEBs for the
Milwaukee-Racine area is 21.08 tpd for
VOC and 51.22 tpd for NOX. The 2022
MVEBs for the Milwaukee-Racine area
is 15.98 tpd for VOC and 31.91 tpd for
NOX.
PART 81—[AMENDED]
3. The authority citation for part 81
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2585 is amended by
adding paragraphs (z) and (aa) to read as
follows:
■
§ 52.2585
Control strategy: Ozone.
*
*
*
*
*
(z) Approval—Wisconsin submitted
2005 VOC and NOX emissions
inventories for the Milwaukee-Racine
and Sheboygan areas on September 11,
2009, and supplemented the submittal
Authority: 42 U.S.C. 7401 et seq.
4. Section 81.350 is amended by
revising the entries for MilwaukeeRacine, WI in the table entitled
Wisconsin—1997 8-Hour Ozone
NAAQS (Primary and Secondary) to
read as follows:
■
§ 81.350
*
Wisconsin.
*
*
*
*
WISCONSIN—1997 8-HOUR OZONE NAAQS (PRIMARY AND SECONDARY)
Designation a
Category/classification
Designated area
Date 1
emcdonald on DSK67QTVN1PROD with RULES
*
*
Milwaukee-Racine, WI:
Kenosha County .........................................
Milwaukee County.
Ozaukee County.
Racine County.
Washington County.
Waukesha County.
*
*
Date 1
Type
*
*
7/31/12
*
*
*
*
*
*
Attainment.
*
*
a Includes
Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.
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*
*
Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations
*
*
*
[FR Doc. 2012–18091 Filed 7–30–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 67
[Docket ID FEMA–2012–0003]
Final Flood Elevation Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
Base (1% annual-chance)
Flood Elevations (BFEs) and modified
BFEs are made final for the
communities listed below. The BFEs
and modified BFEs are the basis for the
floodplain management measures that
each community is required either to
adopt or to show evidence of being
already in effect in order to qualify or
remain qualified for participation in the
National Flood Insurance Program
(NFIP).
DATES: The date of issuance of the Flood
Insurance Rate Map (FIRM) showing
BFEs and modified BFEs for each
community. This date may be obtained
by contacting the office where the maps
are available for inspection as indicated
in the table below.
ADDRESSES: The final BFEs for each
community are available for inspection
at the office of the Chief Executive
Officer of each community. The
SUMMARY:
State
City/town/county
respective addresses are listed in the
table below.
FOR FURTHER INFORMATION CONTACT: Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street SW., Washington, DC 20472,
(202) 646–4064, or (email) Luis.
Rodriguez3@fema.dhs.gov.
SUPPLEMENTARY INFORMATION: The
Federal Emergency Management Agency
(FEMA) makes the final determinations
listed below for the modified BFEs for
each community listed. These modified
elevations have been published in
newspapers of local circulation and
ninety (90) days have elapsed since that
publication. The Deputy Associate
Administrator for Mitigation has
resolved any appeals resulting from this
notification.
This final rule is issued in accordance
with section 110 of the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4104,
and 44 CFR part 67. FEMA has
developed criteria for floodplain
management in floodprone areas in
accordance with 44 CFR part 60.
Interested lessees and owners of real
property are encouraged to review the
proof Flood Insurance Study and FIRM
available at the address cited below for
each community. The BFEs and
modified BFEs are made final in the
communities listed below. Elevations at
selected locations in each community
are shown.
National Environmental Policy Act.
This final rule is categorically excluded
from the requirements of 44 CFR part
10, Environmental Consideration. An
Source of flooding
environmental impact assessment has
not been prepared.
Regulatory Flexibility Act. As flood
elevation determinations are not within
the scope of the Regulatory Flexibility
Act, 5 U.S.C. 601–612, a regulatory
flexibility analysis is not required.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866 of September 30,
1993, Regulatory Planning and Review,
58 FR 51735.
Executive Order 13132, Federalism.
This final rule involves no policies that
have federalism implications under
Executive Order 13132.
Executive Order 12988, Civil Justice
Reform. This final rule meets the
applicable standards of Executive Order
12988.
List of Subjects in 44 CFR Part 67
Administrative practice and
procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR part 67 is
amended as follows:
PART 67—[AMENDED]
1. The authority citation for part 67
continues to read as follows:
■
Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 3 CFR,
1978 Comp., p. 329; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376.
§ 67.11
[Amended]
2. The tables published under the
authority of § 67.11 are amended as
follows:
■
* Elevation in feet
(NGVD)
+ Elevation in feet
(NAVD)
# Depth in feet
above ground
∧ Elevation in meters (MSL)
Modified
Location
Unincorporated Areas of Solano County, California
Docket No.: FEMA–B–1200
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California .....
Unincorporated Areas of
Solano County.
Sweany Creek .................
Approximately 375 feet upstream of the McCune
Creek confluence.
Approximately 930 feet upstream of Timm Road .....
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
# Depth in feet above ground.
∧ Mean Sea Level, rounded to the nearest 0.1 meter.
ADDRESSES
Unincorporated Areas of Solano County
Maps are available for inspection at the Solano County Public Works Department, 675 Texas Street, Suite 5500, Fairfield, CA 94533.
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+149
]]>Agencies
[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Rules and Regulations]
[Pages 45252-45262]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18091]
[[Page 45252]]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2009-0730; FRL-9702-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of
the Milwaukee-Racine Area to Attainment for 1997 8-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a request from the Wisconsin Department of
Natural Resources (WDNR) to redesignate the Milwaukee-Racine area to
attainment for the 1997 8-hour National Ambient Air Quality Standard
(NAAQS or standard). The Milwaukee-Racine area includes Milwaukee,
Ozaukee, Racine, Washington, Waukesha, and Kenosha Counties. WDNR
submitted this request on September 11, 2009, and supplemented the
submittal on November 16, 2011. These submittals also requested the
redesignation of the Sheboygan area (Sheboygan County) to attainment
for the 1997 8-hour ozone NAAQS. EPA proposed to approve the
redesignation of both areas on February 9, 2012, and provided a 30-day
review and comment period. EPA received comments submitted on behalf of
Sierra Club and Midwest Environmental Defense Center and from the
Wisconsin Manufacturers and Commerce. EPA is not taking final action on
the Sheboygan redesignation request at this time because preliminary
2012 ozone monitoring data indicate that the area has violated the 1997
standard. In addition to approving the redesignation of the Milwaukee-
Racine area, EPA is taking several other related actions. EPA is
approving, as a revision to the Wisconsin State Implementation Plan
(SIP), the State's plan for maintaining the 1997 8-hour ozone standard
through 2022 in the Milwaukee-Racine area. EPA is approving the 2005
emissions inventories for the Milwaukee-Racine and Sheboygan areas as
meeting the comprehensive emissions inventory requirement of the Clean
Air Act (CAA or Act). Finally, EPA finds adequate and is approving the
State's 2015 and 2022 Motor Vehicle Emission Budgets (MVEBs) for the
Milwaukee-Racine area.
DATES: Effective Date: This rule is effective on July 31, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2009-0730. All documents in the docket are listed on
the www.regulations.gov web site. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through 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), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767,
dagostino.kathleen@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What is the background for this rule?
II. What comments did we receive on the proposed rule?
III. What actions is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background for this rule?
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone
standard of 0.08 parts per million (ppm). EPA published a final rule
designating and classifying areas under the 1997 8-hour ozone NAAQS on
April 30, 2004 (69 FR 23857). In that rulemaking, the Milwaukee-Racine
area was designated as nonattainment for the 1997 8-hour ozone standard
and classified as a moderate nonattainment area under subpart 2 of part
D of the CAA (69 FR 23857, 23947).
On September 11, 2009, WDNR requested redesignation of the
Milwaukee-Racine and Sheboygan areas to attainment of the 1997 8-hour
ozone standard based on ozone data for the period of 2006-2008. On
November 16, 2011, WDNR supplemented the original ozone redesignation
requests, revising the mobile source emission estimates using EPA's on-
road mobile source emissions model, MOVES, and extending the
demonstration of maintenance of the ozone standard through 2022, with
new MVEBs, but without relying on emission reductions resulting from
implementation of EPA's Clean Air Interstate Rule (CAIR) or Cross-State
Air Pollution Rule (CSAPR).
On March 1, 2011 (76 FR 11080), EPA issued a final rulemaking
determining that the Milwaukee-Racine and Sheboygan areas had attained
the 1997 8-hour ozone NAAQS based on three years of complete, quality-
assured ozone data for the 2006-2008, 2007-2009, and 2008-2010 time
periods.\1\
---------------------------------------------------------------------------
\1\ Certified ozone data for 2011 demonstrates that the areas
continued to attain the 1997 8-hour ozone standard in 2011. EPA
recognizes that the ozone data for 2007-2009 as well as the data for
2010 and 2011 are impacted by emission reductions associated with
the CAIR, which was promulgated in 2005, but remanded to EPA in
2008. The fact that the data reflect some reductions associated with
the remanded and therefore not permanent CAIR, however, is not an
impediment to redesignation in the circumstances presented here
where WDNR's demonstration and EPA's own modeling demonstrates that
the areas do not need reductions associated with the CAIR to attain
the 1997 ozone NAAQS.
---------------------------------------------------------------------------
On February 9, 2012 (77 FR 6727), EPA issued a rulemaking action
proposing to approve Wisconsin's requests to redesignate the Milwaukee-
Racine and Sheboygan areas to attainment of the 1997 8-hour ozone
standard, as well as proposing to approve Wisconsin's maintenance plans
for the areas, volatile organic compound (VOC) and nitrogen oxides
(NOX) MVEBs, and VOC and NOX emissions
inventories. This proposed rulemaking sets forth the basis for
determining that Wisconsin's redesignation request meets the CAA
requirements for redesignation of the Milwaukee-Racine area to
attainment for the 1997 8-hour ozone NAAQS. Air quality monitoring data
in the Milwaukee-Racine and Sheboygan areas for 2007-2009, 2008-2010,
and 2009-2011 show attainment of the 1997 8-hour ozone NAAQS.
Preliminary data available for the Milwaukee area for 2012 are
consistent with continued attainment. Preliminary 2012 data for the
Sheboygan area, however, indicate that the area is currently violating
the 1997 8-hour ozone standard. For this reason, EPA is not finalizing
action on the State's request to redesignate the Sheboygan area at this
time. The primary background for today's action is contained in EPA's
February 9, 2012, proposal to approve Wisconsin's redesignation
requests, and in EPA's March 1, 2011, final rulemaking determining that
the areas have attained the 1997 8-hour ozone NAAQS, based on complete,
quality-assured monitoring
[[Page 45253]]
data for 2006-2008, 2007-2009, and 2008-2010 time periods. In these
rulemakings, we noted that under EPA regulations at 40 CFR 50.10 and 40
CFR part 50 appendix I, the 1997 8-hour ozone standard is attained when
the 3-year average of the annual fourth highest daily maximum 8-hour
average ozone concentrations is less than or equal to 0.08 ppm at all
ozone monitoring sites in the area. See 69 FR 23857 (April 30, 2004)
for further information. To support the redesignation of an area to
attainment of the NAAQS, the ozone data must be complete for the three
attainment years. The data completeness requirement is met when the 3-
year average of days with valid ambient monitoring data is greater than
90 percent, and no single year has less than 75 percent data
completeness, as determined in accordance with appendix I of 40 CFR
part 50. Under the CAA, EPA may redesignate a nonattainment area to
attainment if sufficient, complete, quality-assured data are available
demonstrating that the area has attained the standard and if the state
meets the other CAA redesignation requirements specified in section
107(d)(3)(E) and section 175A.
The February 9, 2012, proposed redesignation rulemaking provides a
detailed discussion of how Wisconsin's ozone redesignation request for
the Milwaukee-Racine area meets the CAA requirements for redesignation
to attainment. With the final approval of its VOC and NOX
emissions inventories, and its VOC Reasonably Available Control
Technology (RACT) regulations, Wisconsin has met all applicable CAA
requirements for redesignation to attainment of the area for the 1997
8-hour ozone NAAQS. Complete, quality-assured, and certified air
quality monitoring data in the Milwaukee-Racine area for 2009-2011, and
preliminary data for 2012, show that this area continues to attain the
1997 8-hour ozone NAAQS. In the maintenance plan it submitted for this
area, Wisconsin has demonstrated that attainment of the 1997 8-hour
ozone NAAQS will be maintained in the Milwaukee-Racine area through
2022, with or without the implementation of CAIR or CSAPR. In addition,
modeling conducted by EPA during the CSAPR rulemaking demonstrates that
in both 2012 and 2014, even without taking into account reductions
associated solely with CAIR or CSAPR, the counties in the Milwaukee-
Racine nonattainment area will have air quality that attains the 1997
ozone NAAQS. Finally, Wisconsin has adopted 2015 and 2022 MVEBs that
are supported by Wisconsin's ozone maintenance demonstrations and
Wisconsin has adopted an ozone maintenance plan.
II. What comments did we receive on the proposed rule?
EPA provided a 30-day comment period for the February 9, 2012,
proposed rule. During the comment period, Wisconsin Manufacturers and
Commerce submitted comments in support of the actions and we received
one set of comments objecting to the redesignation of the Milwaukee-
Racine area submitted on behalf of the Sierra Club and the Midwest
Environmental Defense Center. The adverse comments are summarized and
addressed below.
Comment 1: The commenter asserts that the redesignation of the
Milwaukee-Racine area to attainment of the 1997 8-hour ozone standard
would violate the CAA because the State of Wisconsin and EPA have not
ensured that nonattainment area New Source Review (NSR) would apply
after redesignation. The commenter contends that such a situation
conflicts with the language of section 107(d)(3)(E)(v) of the CAA,
which requires the State to have met all requirements of part D of the
CAA, since part D includes requirements for NSR. The commenter argues
that the requirements of section 107(d)(3)(E)(v) make no sense if the
State's NSR program is not required to apply in the area after
redesignation. The commenter further argues that, at a minimum, a
requirement for NSR should be included in the State's ozone maintenance
plan as a contingency measure to be implemented if the area
subsequently violates the 1997 8-hour ozone standard. The commenter
contends that EPA cannot rely on certain policy memoranda to support
its approval of the State's ozone redesignation request and ozone
maintenance plan without the requirement for the implementation of the
NSR program in the Milwaukee-Racine area after redesignation.
Response 1: As clearly stated in EPA's October 14, 1994, policy
memorandum from Mary D. Nichols entitled ``Part D New Source Review
(part D NSR) Requirements for Areas Requesting Redesignation to
Attainment,'' ``EPA believes it is reasonable to interpret `measure,'
as used in section 175A(d), not to include part D NSR.'' Congress used
the undefined term ``measure'' differently in different provisions of
the Act, which indicates that the term is susceptible to more than one
interpretation and that EPA has the discretion to interpret it in a
reasonable manner in the context of section 175A. See Greenbaum v. EPA,
370 F.3d 527, 535-38 (6th Cir. 2004). (Court ``find[s] persuasive the
EPA's argument that the very nature of the NSR permit program supports
its interpretation that it is not intended to be a contingency measure
pursuant to section 175A(d).'') It is reasonable to interpret
``measure'' to exclude part D NSR in this context because Prevention of
Significant Deterioration (PSD), a program that is the corollary of
part D NSR for attainment areas, goes into effect in lieu of part D NSR
upon redesignation. PSD requires that new sources demonstrate that
emissions from their construction and operation will not cause or
contribute to a violation of any NAAQS or PSD increment. The State has
demonstrated that the areas will be able to maintain the standard
without Part D NSR in effect, and the State's PSD program will become
effective in the areas upon redesignation to attainment. See the
rationale set forth at length in the Nichols Memorandum. See also the
discussions of why full approval and retention of NSR is not required
in redesignation actions in the following redesignation rulemakings: 60
FR 12459, 12467-12468 (March 7, 1995) (Detroit, MI); 61 FR 20458,
20469-20470 (May 7, 1996) (Cleveland-Akron-Lorrain, OH); 66 FR 53665,
53669 (October 23, 2001) (Louisville, KY); 61 FR 31831, 31836-31837
(June 21, 1996) (Grand Rapids, MI); 73 FR 29436, 29440-29441 (May 21,
2008) (Kewaunee County, WI); 77 FR 34819, 34826-34827 (June 12, 2012)
(Illinois portion of St. Louis, MO-IL).
Comment 2: The commenter contends that the State of Wisconsin does
not have a complete PSD program. Therefore, the commenter argues that
EPA cannot rely on Wisconsin's PSD program being effective and
immediately applicable upon redesignation of the Milwaukee-Racine area.
For this reason, and the argument set forth in comment 1 above, the
commenter contends that Wisconsin's ozone redesignation request and
ozone maintenance plan do not meet the requirements of section
107(d)(3)(E) of the CAA.
The commenter gives the following reasons (see Comments 2(a)-2(c))
for its assertion that Wisconsin's PSD and NSR programs are inadequate
for purposes of redesignation to attainment.
Comment 2(a): The commenter contends that Wisconsin's PSD program
does not comply with the requirement in EPA's 1997 8-hour ozone
implementation phase 2 rule that NOX be considered as an
ozone precursor under PSD. The commenter argues that the definition in
Wisconsin's NSR and PSD regulations specifies only VOC to
[[Page 45254]]
be regulated as an ozone precursor. The commenter claims that this
allows new or modified sources to add or increase NOX
emissions without analyzing their impacts on ozone levels. The
commenter contends that EPA has recently found similar SIPs to be
deficient on this basis, and cites EPA's rulemaking at 75 FR 79300
(December 20, 2010, Mississippi PSD rules).
Response 2(a): EPA believes that the commenter is mistaken in its
view, and that in fact Wisconsin interprets and implements its NSR and
PSD regulations to include NOX as a precursor for ozone.
Wisconsin has an approved PSD program that includes ozone as a
regulated NSR pollutant. See NR 405.02(25i), Wisconsin Administrative
Code. While the commenter is correct in stating that Wisconsin's rule
does not specifically list NOX as a precursor for ozone, the
rule does define ``regulated NSR air contaminant'' to include ``any air
contaminant for which a national ambient air quality standard has been
promulgated and any constituents or precursors for the air contaminants
identified by the administrator * * *.'' See NR 405.02(25i)(a). EPA has
identified both VOCs and NOX as precursors to ozone in the
definition of ``Regulated NSR Pollutant.'' See 40 CFR
51.166(b)(49)(i)(a), 52.21(b)(50)(i)(a).
Wisconsin also sets a table of significant emissions rates for
individual pollutants in the definition of significant at NR
405.02(27)(a). This table sets the significant emissions rate for ozone
at 40 tons per year (tpy) of VOCs and separately sets the significant
emissions rate for NOx at 40 tpy. Wisconsin interprets its 40 tpy
significant emissions rate for nitrogen oxides contained in NR
405.02(27)(a) to apply to require both NO2 and ozone air
quality analyses when emissions meet or exceed that emissions rate.
Therefore, an increase in NOX emissions of 40 tpy or more
will trigger the requirements to: (1) Obtain a PSD permit for ozone;
(2) to perform an air quality analysis that demonstrates that the
proposed source or modification will not cause or contribute to a
violation of the ozone NAAQS; and (3) to apply best available control
technology (BACT) for NOX. Wisconsin has confirmed this
interpretation in a May 18, 2012, letter (hereafter, ``Sponseller
letter'') and a June 6, 2012, email from Bart Sponseller, Director of
the Bureau of Air Management, WDNR to Douglas Aburano, Chief of the
Attainment Planning and Maintenance Section, Air Programs Branch, EPA
Region 5. Although EPA is requiring Wisconsin to make revisions to its
PSD regulations to specifically address NOX as a precursor
to ozone for infrastructure SIP purposes, this interpretation means
that Wisconsin is, in practice, requiring air quality analyses for
ozone under its state PSD regulations consistent with Federal PSD
regulations.
Accordingly, the fact that Wisconsin's approved PSD SIP does not
yet explicitly identify NOX as a precursor to ozone as
required by EPA's Phase 2 ozone implementation rule does not prevent
the program from addressing and helping to assure maintenance of the
ozone standard in accordance with CAA section 175A.
EPA notes that Wisconsin is currently in the process of adopting
permanent rules for submission to EPA to add NOX as an
explicit precursor to ozone consistent with the Federal regulations.
Irrespective of the State's ongoing regulatory actions, EPA concludes
that the features of Wisconsin's currently approved PSD program cited
by the commenter do not detract from the program's adequacy for
purposes of maintenance of the standard and redesignation of the area.
In light of the assurances provided to EPA in the Sponseller letter and
email, Wisconsin's currently approved PSD program is adequate for
purposes of assuring maintenance of the 1997 8-hour ozone standard as
required by section 175A.
Comment 2(b): The commenter asserts that the State of Wisconsin
does not conduct ambient air quality analyses for ozone standard
compliance when issuing PSD permits, and that WDNR does not model ozone
impacts, nor does it conduct other analyses of ozone impacts when
issuing permits. The commenter therefore argues that Wisconsin's PSD
program does not ensure that new and modified sources will not cause
additional ozone standard violations.
Response 2(b): As discussed in response 2(a), Wisconsin has
communicated to EPA that the State is implementing its existing
regulations consistent with the requirements of the Federal PSD
regulations that require an air quality analysis for ozone if a
significant emissions rate of 40 tpy for VOC and/or NOX is
reached or exceeded.
Furthermore, Federal PSD regulations at 40 CFR 51.166(k), (l) and
(m) and 40 CFR 52.21(k), (l) and (m) contain requirements for ambient
impact analyses for proposed major stationary sources and major
modifications to obtain a PSD permit. These requirements apply for
ozone when such sources or modifications trigger PSD review for ozone,
but do not necessarily require quantitative modeling for ozone in all
cases.\2\ See Letter from Gina McCarthy, EPA Assistant Administrator,
Office of Air and Radiation, to Robert Ukeiley (Jan. 4, 2012) at 2; In
Re CF&I Steel, L.P. dba EVRAZ Rocky Mountain Steel, Petition Number
VIII-2011-01 (Order on Petition) (May 31, 2012) at 21-22. The
regulations at 40 CFR 51.166(l) state that for air quality models the
SIP shall provide for procedures which specify that all applications of
air quality modeling involved in this subpart shall be based on the
applicable models, data bases, and other requirements specified in
appendix W of part 51 (Guideline on Air Quality Models). Where an air
quality model specified in appendix W of part 51 (Guideline on Air
Quality Models) is inappropriate, the model may be modified or another
model substituted. Such a modification or substitution of a model may
be made on a case-by-case basis or, where appropriate, on a generic
basis for a specific State program. Written approval of the
Administrator must be obtained for any modification or substitution. In
addition, use of a modified or substituted model must be subject to
notice and opportunity for public comment under procedures set forth in
Sec. 51.102. See also 40 CFR 52.21(l).
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\2\ Wisconsin's rules at NR 405.09, NR 405.10 and NR 405.11 meet
the requirements of 40 CFR 51.166(k), (l), and (m), respectively.
---------------------------------------------------------------------------
The above-referenced parts of 40 CFR part 51 and 52 contain the
umbrella components for ambient air quality and source impact analyses
for PSD permitting. PSD requirements for SIPs are found in 40 CFR
51.166. As discussed above, sections 51.166(l) and 52.21(l), and
Wisconsin rule NR 405.10, refer to 40 CFR part 51, appendix W for the
appropriate method to utilize for the ambient impact assessment. 40 CFR
part 51, appendix W is the Guideline on Air Quality Models and Section
1.0.a. states that the Guideline recommends air quality modeling
techniques that should be applied to State Implementation Plan (SIP)
revisions for existing sources and to new source review (NSR),
including prevention of significant deterioration (PSD). {footnotes not
included{time} Applicable only to criteria air pollutants, it is
intended for use by EPA Regional Offices in judging the adequacy of
modeling analyses performed by EPA, State and local agencies, and by
industry. The Guideline is not intended to be a compendium of modeling
techniques. Rather, it should serve as a common measure of acceptable
technical analysis when support by sound scientific judgment.
[[Page 45255]]
Appendix W, section 5.2.1 includes the Guideline recommendations
for models to be utilized in assessing ambient air quality impacts for
ozone. Specifically, Section 5.2.1.c states that choice of methods used
to assess the impact of an individual source depends on the nature of
the source and its emissions. Thus, model users should consult with the
Regional Office to determine the most suitable approach on a case-by-
case basis (subsection 3.2.2).
Appendix W, section 5.2.1.c provides that the state and local
permitting authorities and permitting applicants should work with the
appropriate EPA Regional Office on a case-by-case basis to determine an
adequate method for performing an air quality analysis for assessing
ozone impacts. Due to the complexity of modeling ozone and the
dependency on the regional characteristics of atmospheric conditions,
EPA believes this is an appropriate approach, rather than specifying a
method for assessing single source ozone impacts, which may not be
appropriate in all circumstances.\3\ Instead, the choice of method
``depends on the nature of the source and its emissions. Thus, model
users should consult with the Regional Office to determine the most
suitable approach on a case-by-case basis'' appendix W, section
5.2.1.c. Thus, appendix W allows flexibility through the consultation
process to determine either modeling based or other analysis techniques
may be acceptable. Based on an evaluation of the source, its emissions
and background ozone concentrations, an ozone impact analysis other
than modeling may be required. Therefore, permitting authorities should
consult and work with EPA Regional Offices as described in appendix W,
including section 3.0.b and c, 3.2.2, and 3.3, to determine the
appropriate approach to assess ozone impacts for each PSD required
evaluation. Although EPA has not selected one particular preferred
model in appendix A of appendix W (Summaries of Preferred Air Quality
Models) for conducting ozone impact analyses for individual sources,
permitting authorities in Wisconsin must comply with the appropriate
PSD SIP requirements with respect to ozone.
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\3\ EPA has explained that given the complexities of ozone
formation, its judgment has been that it was not technically sound
to designate with particularity specific models that must be used to
assess the impacts of a single source on ozone concentrations, but
rather has provided a consultation process in appendix W for
determining particular models or other analytical techniques that
should be used on a case-by-case basis. See Letter from Gina
McCarthy, EPA Assistant Administrator, Office of Air and Radiation
to Robert Ukeiley (Jan. 4, 2012) at 2. However, EPA granted a
petition for rulemaking on January 4, 2012, stating that it would
engage in a rulemaking process to consider whether updates to EPA's
Guideline on Air Quality Models as published in appendix W are
warranted, and, as appropriate, to incorporate new analytical
techniques or models for ozone. Id at 1.
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EPA has previously approved the State's PSD program.\4\ EPA expects
Wisconsin to consult with staff in the Region 5 Office on a case-by-
case basis for permitting purposes to determine appropriate methods for
assessing the impacts from specific sources on ozone concentrations. An
example of such consultation is the permitting action for Aarrowcast,
Inc. in Shawano, Wisconsin.
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\4\ See, ``Approval and Promulgation of Implementation Plans;
Wisconsin,'' 64 FR 28745 (May 27, 1999). While the Phase 2 Rule
obligates states to make explicit regulatory changes in order to
clarify and remove any ambiguity concerning the requirement that
NOX be treated as a precursor to ozone in permitting
contexts, the State has authority in its PSD SIP to treat
NOX as a precursor to ozone in permitting decisions, and
the State is correctly interpreting its PSD and NSR regulations with
regard to inclusion of NOX as a precursor to ozone as
discussed in Response 2(a).
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Comment 2(c): The commenter contends that the Wisconsin SIP is
deficient because it contains an unacceptable definition of ``major
modification'' for purposes of NSR and PSD for sources involving fuel
change. The commenter cites a June 17, 2009, letter from EPA to WDNR
noting this definition problem in the Wisconsin SIP. The commenter
asserts that because of this problem, emissions can increase as a
result of non-exempt fuel changes without going through a PSD analysis,
meaning that PSD provides no protection for the ozone NAAQS in some
situations.
Response 2(c): ``Major modification'' as it relates to PSD is
generally defined in NR 405.02(21) of Wisconsin's SIP. The exemptions
to ``physical change'' or ``change in the method of operation'' are
contained at NR 405.02(21)(b). One exemption is the ability of a source
capable of accommodating different types of fuels before 1975 to switch
the type of fuel burned, unless prohibited by a restriction in a permit
established after 1975.
EPA regulations contained at 40 CFR 51.166(b)(2)(iii)(e)(1) and (2)
specifically prescribe when use of an alternative fuel is not
considered a physical change for purposes of defining a ``major
modification.'' These regulations require that a physical change or
change in the method shall not include use of an alternative fuel or
raw material by a stationary source which the source was capable of
accommodating before January 6, 1975, unless such change would be
prohibited under any Federally enforceable permit condition which was
established after January 6, 1975 pursuant to 40 CFR 52.21 or under
regulations approved pursuant to 40 CFR part 51, subpart I, or 40 CFR
51.166; or the source is approved to use the fuel under any permit
issued under 40 CFR 52.21 or under regulations approved pursuant to 40
CFR 51.166.
The Wisconsin regulations set out the conditions for the fuel
change exemption as follows:
The source was capable of accommodating the alternative fuel or
raw material before January 6, 1975, unless the change would be
prohibited under any federally enforceable permit condition which
was established after January 6, 1975 pursuant to this chapter or
ch. NR 406 or 408 or under an operation permit issued pursuant to
ch. NR 407.
[Or, t]he source is approved to use the alternative fuel or raw
material under any permit issued under this chapter or ch. NR 406,
407, or 408. See NR 405.02(21)(b)(5).
The Wisconsin rule is similar to the Federal rule, but differs by
substituting references to Wisconsin Administrative Code sections, and
omitting reference to permits issued under the Federal program at 40
CFR 52.21.
The commenter raised concerns that failure to cite Federal
regulations results in the loss of prohibitions on fuel use exemptions
that may have been contained in Federally-issued PSD permits, issued
prior to EPA's approval of Wisconsin's PSD SIP, resulting in more
exemptions to the definition of ``major modification'' than allowed by
the Federal rules.
WDNR states that under its title V operating permit program, all
applicable requirements to a source are included in its operation
permit. As a result, WDNR states that it clearly recognizes that
requirements contained in a Federally-issued PSD permit would be
applicable requirements to the source and that they would be included
in the source's title V operating permit, therefore making the
requirements fully enforceable under State and Federal law. WDNR has
taken the position that this is a very narrow issue and has asserted
that ``to its knowledge it is not aware of a single situation where an
omission has occurred in practice.'' See Sponseller letter. While the
commenter contends that emissions can ``increase from non-exempt fuel
changes without going through a PSD analysis,'' the commenter has not
provided information to support this assertion nor has he identified
any instance where any such emissions increase has actually occurred.
Although EPA is requiring Wisconsin to revise its PSD regulations
to specifically address this issue for
[[Page 45256]]
infrastructure SIP purposes, EPA agrees with WDNR that this issue is a
very narrow one, and that an omission in practice is perhaps
nonexistent. EPA recognizes that in practice, WDNR has the authority
and means to ensure adherence to the prohibitions on fuel use
exemptions in certain instances, consistent with our own definition of
``major modification.'' Therefore, EPA concludes that the features of
Wisconsin's current PSD program cited by the commenter do not detract
from the program's adequacy for purposes of maintenance of the standard
and redesignation of the area.
Comment 3: The commenter asserts that, besides PSD and NSR
deficiencies, the Wisconsin SIP contains several other deficiencies
that are contrary to the requirements of section 110 of the CAA.
The commenter claims that the Wisconsin SIP contains a source
startup and shutdown excess emissions exemption that EPA has found to
be not approvable and in conflict with section 110 of the CAA. The
commenter also asserts that the Wisconsin SIP contains ``illegal''
Director's Discretion provisions and that EPA has interpreted section
110 as prohibiting such SIP provisions. The commenter claims that the
Wisconsin Administrative Code contains such provisions at NR 436.03(2),
NR 436.04, and NR 436.06. The commenter asserts that, historically, EPA
has determined that it cannot approve SIPs as being adequate when they
contain such Director's Discretion provisions that have the potential
to change the stringency of the SIP.
Response 3: The issue before EPA in the current rulemaking action
is a redesignation for the Milwaukee-Racine area for the 1997 8-hour
ozone standard, including the maintenance plan, and comprehensive
emissions inventories. The SIP provisions identified by the commenter
are not currently being proposed for revision as part of the
redesignation submittals. Because the rules cited by the commenter are
not pending before EPA and/or are not the subject of this rulemaking
action, EPA did not undertake a full SIP review of the individual
provisions. It has long been established that EPA may rely on prior SIP
approvals in approving a redesignation request plus any additional
measures it may approve in conjunction with a redesignation action. See
e.g., page 3 of the September 4, 1992, memorandum from John Calcagni
entitled ``Procedures for Processing Requests to Redesignate Areas to
Attainment'' (Calcagni Memorandum); Wall v. EPA, 265 F.3d 426 (6th Cir.
2001); Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d
984 (6th Cir. 1998); 68 FR 25413, 25426 (May 12, 2003) (St. Louis
redesignation). The CAA does not require EPA in the context of a
redesignation to attainment to revisit and address existing SIP
provisions, and envisions that EPA may address such issues separately
and outside the context of action on a redesignation request.
The CAA provides other avenues and mechanisms to address specific
substantive deficiencies in existing SIPs. These statutory tools allow
EPA to take appropriate tailored action, depending upon the nature and
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes
EPA to issue a ``SIP call'' whenever the Agency determines that a
state's SIP is substantially inadequate to attain or maintain the
NAAQS, to mitigate interstate transport, or otherwise to comply with
the CAA.\5\ Section 110(k)(6) authorizes EPA to correct errors in past
actions, such as past approvals of SIP submissions.\6\
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\5\ For example, EPA has recently issued a SIP call in Utah to
rectify a specific SIP deficiency related to a startup, shutdown and
malfunction issue. See, ``Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State Implementation Plan
Revision,'' 74 FR 21639 (April 18, 2011).
\6\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (December 30,
2010). EPA has previously used its authority under CAA 110(k)(6) to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
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Comment 4: The commenter argues that EPA has not demonstrated that
the reduction in ozone pollution in the Milwaukee-Racine area is due to
permanent and enforceable emission reductions. The bases for the
commenter's assertion are set forth in comments 4(a) through (f).
Comment 4a: The commenter asserts that comparing 2005 and 2008
emissions in the Milwaukee-Racine ozone nonattainment area is not an
adequate method to demonstrate that the ozone air quality improvement
in this area is due to the implementation of permanent and enforceable
emission control measures, in keeping with section 107(d)(3)(E)(iii) of
the CAA. The commenter contends that the calculated change in VOC and
NOX emissions between 2005 and 2008 does not show that the
emission changes were due to permanent and enforceable emission
reductions, as opposed to temporary emission reductions and/or emission
reductions due to factory output slowdowns (under utilization of
factory capacity) or recession-related output and transportation
declines.
To support the commenter's assertion, the commenter compares 2008
permitted (allowable) NOX emissions for electric power
plants in the Milwaukee-Racine area with the total point source
NOX emissions documented by EPA for this area in EPA's
Milwaukee-Racine area ozone redesignation proposed rule. The commenter
shows that the permitted NOX emissions from only the
electric power plants in the Milwaukee-Racine area exceed the actual
2008 NOX emissions for all point sources in the Milwaukee-
Racine area reported by EPA in the proposed rule for the redesignation
of the Milwaukee-Racine area to attainment of the 1997 8-hour ozone
standard, 77 FR 6738. The commenter contends that the comparison of
permitted NOX emissions (electric generating plants) and
actual, reported NOX emissions (all point sources) shows
that facilities can lawfully emit at much higher rates. Therefore, the
commenter asserts that EPA has not properly considered permanent and
enforceable emission reductions.
Response 4a: EPA's longstanding practice and policy \7\ provide for
states to demonstrate permanent and enforceable emissions reductions by
comparing nonattainment area emissions occurring during the
nonattainment period with emissions in the area during the attainment
period. Therefore, selecting 2008 as a representative attainment year,
and comparing emissions for this year to those of a representative year
during the nonattainment period, 2005, is an appropriate and long-
established approach to demonstrate that emission reductions occurred
in the area between the years of nonattainment and attainment. These
reductions, therefore, can be seen to account for the observed air
quality improvement.
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\7\ See Calcagni memorandum, pp. 4 and 8-9.
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As discussed in the proposed rule at 77 FR 6727, 6737-6738
(February 9, 2012), Wisconsin and upwind areas have implemented a
number of permanent and enforceable regulatory control measures which
have reduced emissions and resulted in a corresponding improvement in
air quality. These controls include regulations to control
NOX emissions at electric utilities and large industrial
combustion sources and establish NOX emissions standards for
new sources;
[[Page 45257]]
Tier 2 emission standards for vehicles; and the nonroad diesel rule. In
addition a broad range of emission sectors were required to reduce
ozone precursors as a result of being subject to Federal new source
performance standards, national emissions standards for hazardous air
pollutants, and maximum achievable control technology standards with
compliance requirements that take effect over the relevant time period.
Further, Federal control measures as well as the NOX SIP
Call have resulted in reduced ozone precursors being transported into
the area. While the commenter expressed concerns that the emissions
reductions may be temporary and/or due to factory output slowdowns
(underutilization of factory capacity) or recession-related output and
transportation declines, the commenter has made no demonstration that
this is the case.
With regard to consideration of actual versus allowable/permitted
emission levels, longstanding practice and EPA policy support the use
of actual emissions when demonstrating permanent and enforceable
emission reductions.\8\ Changes in actual emissions are more reflective
of emission reductions that in reality contribute to improvements in
monitored ozone concentrations. Sources seldom, if ever, emit at
maximum allowable emission levels, and assuming that all sources
simultaneously operate at maximum capacity would result in a gross
overestimation of emission levels. For this reason, EPA believes actual
emissions are the appropriate emission levels to consider when
comparing nonattainment year emissions with attainment year emissions.
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\8\ See Calcagni Memorandum, pp. 4 and 8-9.
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Comment 4b: The commenter contends that neither EPA nor the State
of Wisconsin made any calculation of the amounts of emission reduction
that actually resulted from the implementation of permanent and
enforceable emission controls. The commenter asserts that there was no
connection between the reported change in actual emissions and the
enforceable emission reduction requirements implemented in the
Milwaukee-Racine area.
The commenter objects to EPA's listing of implemented emission
control requirements as a demonstration that such emission control
requirements have resulted in the observed ozone air quality
improvement in the Milwaukee-Racine area. The commenter states that EPA
has not estimated the emission impacts of each of the implemented
emission control requirements and contends that EPA has not tied such
emissions impacts to the reported change in actual emissions between
2005 and 2008.
Response 4b: EPA's conclusion here is fully supported by the facts
and applicable legal criteria. EPA's longstanding practice and policy
\9\ provides for states to demonstrate permanent and enforceable
emissions reductions by comparing nonattainment area emissions
occurring during the nonattainment period with emissions in the area
during the attainment period. See response 4a.
---------------------------------------------------------------------------
\9\ See Calcagni memorandum, pp. 4 and 8-9.
---------------------------------------------------------------------------
Therefore, selecting 2008 as a representative attainment year, and
comparing emissions for this year to those for a representative year
during the nonattainment period, 2005, is an appropriate and long-
established approach to establish that emission reductions occurred in
the area between the years of nonattainment and attainment. These
emission reductions, therefore, can be seen to account for the observed
air quality improvement.
In developing the attainment year emissions inventory, the State
took into account permanent and enforceable emissions control programs
being implemented when estimating emissions. The change in emissions
from 2005 to 2008 is shown in Table 4 in the proposed rule (77 FR 6727,
6738).
For point sources, the State's emissions estimates factored in
process information, operation information and control factors.
Wisconsin adopted NOX RACT regulations to control
NOX emissions at electric utilities and large industrial
combustion sources and established NOX emissions standards
for new sources. The regulation of existing sources was estimated to
achieve a 30 ton per day (tpd) reduction in NOX by 2003 and
a 55 tpd reduction by 2007, i.e., approximately a 25 tpd reduction
between 2003, a nonattainment year and 2007, an attainment year.
For area sources, emissions are strongly associated with population
levels. Therefore, although controls were considered in area source
calculations, emissions grew slightly between 2005 and 2008 as a result
of population growth.
Reductions in VOC and NOX emissions have occurred as a
result of Federal mobile source emission control measures, with
additional emission reductions expected to occur over the maintenance
period. These measures include Tier 2 Emission Standards for Vehicles
and Gasoline Sulfur Standards, the Heavy-Duty Diesel Engine Rule, and
the Nonroad Diesel Rule. Emissions reductions from these permanent and
enforceable programs were quantified by the State in its calculation of
the nonroad and onroad mobile sector emissions inventories.
For nonroad mobile sources, it is standard and accepted practice
for states to estimate emissions using an EPA-approved emissions model.
Wisconsin ran EPA's approved emissions model, National Mobile Inventory
Model (NMIM), which estimates emissions while taking into account the
effect of Federal nonroad mobile control programs and fleet turnover.
The NMIM model showed that between 2005 and 2008, total nonroad VOC and
NOX emissions in the Milwaukee-Racine area were reduced by
approximately 17 percent and 10 percent, respectively. The emissions
estimates generated by NMIM quantify permanent and enforceable
emissions reductions from nonroad mobile control programs; it is not
necessary for the state to identify the portion of these reductions
attributable to each individual control measure.
For onroad mobile sources, it is standard and accepted practice for
states to estimate emissions using an EPA-approved emissions model and
daily vehicle miles traveled data. Wisconsin ran EPA's approved onroad
mobile emissions model, MOVES2010a, which takes into account the effect
of Federal motor vehicle control programs and fleet turnover when
calculating emissions estimates. Between 2005 and 2008, onroad VOC and
NOX emissions in the Milwaukee-Racine area were reduced by
approximately 22 percent and 21 percent, respectively. The emissions
estimates generated by the MOVES model quantify permanent and
enforceable emissions reductions from all Federal motor vehicle control
programs; it is not necessary for the state to identify the portion of
these reductions attributable to each individual control measure.
Permanent and enforceable emissions reductions in upwind areas also
contributed to attainment of the 1997 8-hour ozone standard in the
Milwaukee-Racine area. While Wisconsin did not quantify these upwind
emissions reductions by state, overall emissions reductions estimates,
by program, are available. Under the NOX SIP Call, ozone
season NOX emissions were reduced by approximately 68,000
\10\ tons between 2005 and 2008. In addition, permanent and enforceable
reductions in VOC and NOX emissions have
[[Page 45258]]
occurred in upwind areas from Federal motor vehicle control programs.
Overall emissions reductions from the implementation of these programs
have been estimated as follows: Tier 2 Emission Standards for Vehicles
and Gasoline Sulfur Standards, 69-95 percent reduction in
NOX and 12-18 percent reduction in VOCs, depending on
vehicle class; the Heavy-Duty Diesel Engine Rule, 95 percent reduction
in NOX; and the Nonroad Diesel Rule, 90 percent reduction in
NOX. Some of these emission reductions occurred by the
attainment period and additional emission reductions will occur during
the maintenance period as the fleet turns over.
---------------------------------------------------------------------------
\10\ See 2008 NOx Budget Trading Program Progress Report, https://www.epa.gov/airmarkets/progress/NBP_4.html.
---------------------------------------------------------------------------
It is not necessary for every change in emissions between the
nonattainment year and the attainment year to be permanent and
enforceable. Rather, the improvement in air quality necessary for the
area to attain the relevant NAAQS must be reasonably attributable to
permanent and enforceable reductions in emissions. In summary, the
State has identified a number of permanent and enforceable regulatory
control measures which have been implemented in Wisconsin as well as in
upwind areas and has documented significant emissions reductions
resulting from these programs. These documented permanent and
enforceable emissions reductions in combination with four three-year
periods of monitoring data showing that the Milwaukee-Racine area is
attaining the 1997 8-hour ozone NAAQS (2006-2008, 2007-2009, 2008-2010,
and 2009-2011) represents an adequate demonstration that the
improvement in air quality can reasonably be attributed to the
significant reduction in emissions resulting from permanent and
enforceable emissions control programs.
Comment 4c: The commenter objects to EPA's statement that emission
reductions resulted from Wisconsin's implementation of the Rate-Of-
Progress (ROP) plan under the previous 1-hour ozone standard. The
commenter claims that the ROP plan was implemented well before 2005,
the base year of EPA's emission comparison, and that implementation
preceded the years the area violated the 1997 8-hour ozone standard.
Response 4c: The commenter's objection is unfounded. EPA mentioned
Wisconsin's ROP plan under the 1-hour ozone standard in the context of
its discussion of Wisconsin's stationary source NOX emission
control rules. See 77 FR 6737. Wisconsin estimated that the State's
stationary NOX emission control rules, which include
emission controls applied at electric utilities and large industrial
combustion sources, would produce NOX emission reductions
between 2005 and 2007. Wisconsin estimated that these emission controls
would achieve a 30 tpd reduction in NOX emissions by 2003
and a 55 tpd reduction by 2007, i.e., approximately a 25 tpd additional
reduction between 2003 and 2007.
The fact that the State adopted the NOX control rules in
the State's ROP plan under the 1-hour ozone standard and that it began
implementing the ROP plan prior to 2005 does not preclude
NOX emission reductions from these NOX control
rules from occurring after 2005. The implementation of these rules was
phased in over time, resulting in additional emission reductions for a
number of years after the State's adoption of the NOX
emissions control regulations.
Comment 4d: The commenter objects to EPA's citing of EPA's 2004
non-road diesel engine rule and 2000 and 2007 heavy duty diesel rules
without acknowledging that the emissions reduction estimates for these
rules are national calculations of the possible emission impacts once
the rules are fully implemented. The commenter argues that, since these
rules rely on fleet turnover, they did not result in major emission
reductions between 2005 and 2008. The commenter believes that EPA erred
in not making an emission reduction estimate for the local impacts of
these rules during the period of 2005-2008.
Response 4d: There is no basis for EPA to conclude that the Federal
diesel emission controls cited by the commenter have had a smaller
impact, on a percentage emission reduction basis, in the Milwaukee-
Racine area than in other parts of the United States. EPA has cited
national emission reduction estimates on a percentage basis for these
controls, with the implication that similar emission reduction
percentages have occurred in the Milwaukee-Racine area. The commenter
has provided no independent emission reduction estimates localized to
the Milwaukee-Racine area to refute EPA's assumption that such emission
reductions have occurred in the Milwaukee-Racine area. Lacking such
estimates, EPA continues to believe that the Federal diesel emission
control requirements have resulted in reduced NOX and VOC
emissions in the Milwaukee-Racine area, resulting in lower peak ozone
concentrations in this area.
Furthermore, for nonroad mobile sources, it is a standard and
accepted practice for states to estimate emissions using an EPA-
approved emissions model. Wisconsin ran EPA's approved emissions model,
NMIM, which takes into account the affect of Federal nonroad mobile
control programs and fleet turnover when calculating emissions
estimates. Between 2005 and 2008, total nonroad VOC and NOX
emissions in the Milwaukee-Racine area were reduced by approximately 17
percent and 10 percent, respectively.
For onroad mobile sources, it is standard and accepted practice for
states to estimate emissions using an EPA-approved emissions model and
daily vehicle miles traveled data. Wisconsin ran EPA's approved onroad
mobile emissions model, MOVES2010a, which takes into account the affect
of Federal motor vehicle control programs and fleet turnover when
calculating emissions estimates. Between 2005 and 2008, onroad VOC and
NOX emissions in the Milwaukee-Racine area were reduced by
approximately 22 percent and 21 percent, respectively.
Comment 4e: The commenter objects to EPA's reference to the
NOX SIP Call since EPA failed to mention that Wisconsin
sources were not included in this regulation. The commenter asserts
that the NOX emission reductions resulting for sources
upwind of the Milwaukee-Racine area are not permanent and enforceable
because the NOX SIP Call has been replaced and its
replacement has been stayed by the United States Court of Appeals for
the District of Columbia Circuit (D.C. Appeals Court). Finally, the
commenter argues that the NOX SIP Call cannot be relied on
to produce permanent and enforceable NOX emission reductions
because the NOX SIP Call provides for the use of a cap-and-
trade emission control program, which the D.C. Appeals Court has held
cannot satisfy area-specific statutory emission control requirements.
NRDC v. EPA, 571 F.3d 1245, 1257 (D.C. Cir. 2009).
Response 4e: The commenter's assertion that EPA failed to mention
that Wisconsin sources were not covered by the NOX SIP Call
is incorrect. The proposal included a footnote explicitly noting that
the State of Wisconsin was not included in the NOX SIP Call
(77 FR 6732 n.3). EPA also did not propose to rely on and is not
relying on any reductions associated with the NOX SIP Call
in the State of Wisconsin or in the Milwaukee-Racine ozone
nonattainment area. With regard to NOX emission reductions
in the Milwaukee-Racine ozone nonattainment area, we note here that
Wisconsin has adopted and implemented NOX RACT rules for
major NOX sources in the Milwaukee-Racine ozone
nonattainment area. These NOX RACT rules were approved into
the
[[Page 45259]]
Wisconsin SIP by the EPA on October 19, 2010, 75 FR 64155. Wisconsin's
NOX RACT rules became effective on August 1, 2007, and
required source compliance with the rules by May 1, 2009. Although
sources had until May 1, 2009, to fully comply with the NOX
RACT rules, EPA believes that some sources began implementation of the
required NOX emission controls well ahead of this
implementation deadline, resulting in NOX emission
reductions in the Milwaukee-Racine ozone nonattainment area by 2008.
These NOX emission controls are permanent and enforceable.
While the NOX SIP Call did not cover the State of
Wisconsin, it did require the District of Columbia and 22 states to
reduce emissions of NOX and, as EPA noted in the proposal,
these reductions resulted in lower concentrations of transported ozone
entering the Milwaukee-Racine area. 77 FR 6737. Because the area is
impacted by the transport of ozone and its precursors, upwind
reductions in NOX resulting from the NOX SIP Call
are relevant to these redesignation actions. EPA disagrees with the
commenter's position that NOX emission reductions in areas
upwind of the Milwaukee-Racine area and associated with the
NOX SIP Call cannot be considered to be permanent and
enforceable. The commenter's first argument--that the NOX
emission reductions are not permanent and enforceable because the
NOX SIP Call has been replaced--is based on a
misunderstanding of the relationship between CAIR and the
NOX SIP Call. While the CAIR ozone-season trading program
replaced the ozone-season NOX trading program developed in
the NOX SIP Call (70 FR 25290), nothing in the CAIR relieved
states of their NOX SIP Call obligations. In fact, in the
preamble to CAIR, EPA emphasized that the states and certain units
covered by the NOX SIP Call but not CAIR must still satisfy
the requirements of the NOX SIP Call. EPA provided guidance
regarding how such states could meet these obligations.\11\ EPA did not
suggest that states could disregard their NOX SIP Call
obligations. (70 FR 25290). For states covered by the NOX
SIP Call, the CAIR NOX ozone season program provides a way
to continue to meet the NOX SIP Call obligations for
electric generating units (EGUs) and large non-electric generating
units (nonEGUs). In addition, the anti-backsliding provisions of 40 CFR
51.905(f) specifically provide that the provisions of the
NOX SIP Call, including the statewide NOX
emission budgets, continue to apply.
---------------------------------------------------------------------------
\11\ EPA guidance regarding the NOX SIP Call
transition to CAIR can be found at https://www.epa.gov/airmarkets/progsregs/cair/faq-10.html. EPA guidance regarding the
NOX SIP Call transition for the CSAPR can be found at
https://www.epa.gov/crossstaterule/faqs.html.
---------------------------------------------------------------------------
In sum, the requirements of the NOX SIP Call remain in
force. They are permanent and enforceable as are state regulations
developed to implement the requirements of the NOX SIP Call.
Further, the fact that the CSAPR which was to replace CAIR was stayed
by the D.C. Appeals Court is not relevant since neither CAIR nor the
CSAPR replace the requirements of the NOX SIP Call, and EPA
has determined that the area does not need any additional reductions
from CAIR or the CSAPR to remain in attainment.
EPA also disagrees with the commenter's argument that the emission
reductions in upwind areas associated with the NOX SIP Call
cannot be considered permanent and enforceable because the
NOX SIP Call provides for a trading program. There is no
support for the commenter's argument that EPA must ignore all emission
reductions in upwind areas that were achieved by the NOX SIP
Call simply because the mechanism used to achieve the emission
reductions is an emissions trading program. As a general matter,
trading programs establish mandatory caps on emissions and permanently
reduce the total emissions allowed by sources subject to the programs.
The emission caps and associated controls are enforced through the
associated SIP rules or Federal Implementation Plans (FIPs). Any
purchase of allowances and increase in emissions by a utility
necessitates a corresponding sale of allowances and results in an
emission reduction by another utility. Given the regional nature of
ozone formation and transport, the emission reductions will have an air
quality benefit that will compensate, at least in part, for the impact
of any emission increase.
In addition, the case cited by the commenter, NRDC v. EPA, 571 F.3d
1245 (DC Cir. 2009), does not support the commenter's position. The
case addressed EPA's determination that the CAA nonattainment area RACT
requirement was satisfied by the NOX SIP Call trading
program. The court held that, because EPA had not demonstrated that the
trading program would result in sufficient emission reductions within a
nonattainment area, its determination that the program satisfied RACT
was not supported. Id. 1256-58. The court explicitly noted that EPA
might be able to reinstate the provision providing that compliance with
the NOX SIP Call satisfies NOX RACT for EGUs for
particular nonattainment areas if, upon conducting a technical
analysis, it could demonstrate that the NOX SIP Call results
in greater emissions reductions in a nonattainment area than would be
achieved if RACT-level controls were installed in that area. Id. at
1258. In this case, EPA did not assume that the NOX SIP Call
led to any reductions within the nonattainment area. As such, the NRDC
v. EPA decision is not relevant here.
Comment 4f: The commenter asserts that neither EPA nor the State of
Wisconsin have attempted to demonstrate the connection between the
reported emission reductions and the observed ozone air quality
improvement in the Milwaukee-Racine area. No modeling or other
acceptable analyses, including temporal analyses of emission changes
and ozone changes, have been done to demonstrate that the emission
reductions are responsible for the observed air quality improvement. No
correlation between emission changes and ozone changes has been
established. Therefore, EPA has failed to prove that permanent and
enforceable emission reductions have caused the observed ozone air
quality improvement in the Milwaukee-Racine area.
Response 4f: EPA's conclusion that the ozone improvement in the
Milwaukee-Racine area is due to the implementation of emission controls
is fully supported by the facts and applicable legal criteria. As
discussed in greater detail in response 4(b), EPA's longstanding
practice and policy provides for states to demonstrate permanent and
enforceable emissions reductions by comparing nonattainment area
emissions occurring during the nonattainment period with the emissions
in the area during the attainment period. Therefore, selecting 2008 as
a representative attainment year, and comparing emissions for this year
to those for a representative year during the nonattainment period,
2005, is an appropriate and long-established approach that demonstrates
the occurrence of emission reductions in the area between the years of
nonattainment and attainment. These emission reductions, therefore, can
be seen to account for the observed air quality improvement.
With respect to the commenter's assertion that EPA has not
conducted analyses to prove that emission reductions between 2005 and
2008 led to reduced ozone concentrations, as noted above, comparing
emissions for a representative nonattainment year to emissions for a
representative attainment year is such a demonstration. The CAA does
not specifically require the use of modeling in making any such
demonstration and it has not been the general practice to do so. The
State has
[[Page 45260]]
identified a number of permanent and enforceable regulatory control
measures that have been implemented in Wisconsin as well as in upwind
areas, and has documented significant emissions reductions resulting
from these programs. These documented permanent and enforceable
emissions reductions in combination with four three-year periods of
monitoring data showing that the Milwaukee-Racine area is attaining the
1997 8-hour ozone NAAQS (2006-2008, 2007-2009, 2008-2010, and 2009-
2011) represents an adequate demonstration that the improvement in air
quality can reasonably be attributed to the significant reduction in
emissions resulting from permanent and enforceable emissions control
programs.
Comment 5: The commenter contends that EPA has not conducted an
adequate analysis of the effect the ozone redesignation will have on
other NAAQS. The commenter claims that EPA has failed to comply with
the requirements of section 110(l), which requires EPA to conduct such
an analysis whenever it approves a revision in a state air quality
plan.
Response 5: Section 110(l) provides in part: ``the Administrator
shall not approve a revision of a plan if the revision would interfere
with any applicable requirement concerning attainment and reasonable
further progress * * *, or any other applicable requirement of this
chapter.'' As a general matter, EPA must and does consider section
110(l) requirements for every SIP revision, including whether the
revision would ``interfere with'' any applicable requirement. See,
e.g., 70 FR 53, 57 (January 3, 2005); 70 FR 17029, 17033 (April 4,
2005); 70 FR 28429, 28431 (May 18, 2005); and 70 FR 58119, 58134
(October 5, 2005). The Wisconsin maintenance plan and redesignation for
the 1997 8-hour ozone standard do not revise or remove any existing
emissions limit for any NAAQS, nor do they alter any existing control
requirements. On that basis, EPA concludes that the redesignation will
not interfere with attainment or maintenance of any air quality
standards. The commenter does not provide any information to
demonstrate that approval of this redesignation would have any impact
on the area's ability to comply with the any NAAQS. In fact, the
maintenance plan provided with the State's submission demonstrates a
decline in ozone precursor emissions over the timeframe of the initial
maintenance period. As a result, the redesignation will not relax any
existing rules or limits, nor will the redesignation alter the status
quo air quality. The commenter has not provided any reason that the
redesignation might interfere with attainment of any standard or with
satisfaction of any other requirement of the CAA, and EPA finds no
basis under section 110(l) for EPA to disapprove the SIP revision.
III. What actions is EPA taking?
EPA is approving a request from the State of Wisconsin to
redesignate the Milwaukee-Racine area to attainment of the 1997 8-hour
ozone standard. EPA is also taking several other related actions. EPA
is approving, as a revision to the Wisconsin SIP, the State's plan for
maintaining the 1997 8-hour ozone standard through 2022 in the area.
EPA is approving the 2005 emissions inventories as meeting the
comprehensive emissions inventory requirement of the CAA for the
Milwaukee-Racine and Sheboygan areas. Finally, EPA finds adequate and
is approving the State's 2015 and 2022 MVEBs for the Milwaukee-Racine
area.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for these actions to become effective immediately upon publication.
This is because a delayed effective date is unnecessary due to the
nature of a redesignation to attainment, which relieves the area from
certain CAA requirements that would otherwise apply to it. The
immediate effective date for this action is authorized under both 5
U.S.C. 553(d)(1), which provides that rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction,'' and section
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.'' The purpose of the 30-day waiting period
prescribed in section 553(d) is to give affected parties a reasonable
time to adjust their behavior and prepare before the final rule takes
effect. Today's rule, however, does not create any new regulatory
requirements such that affected parties would need time to prepare
before the rule takes effect. Rather, today's rule relieves the state
of planning requirements for this 8-hour ozone nonattainment area. For
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these
actions to become effective on the date of publication of these
actions.
IV. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
These actions do not impose additional requirements beyond those
imposed by state law and the CAA. For that reason, these actions:
Are 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);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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 Clean Air Act; and
Do 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
[[Page 45261]]
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 redesignation.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 1, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Volatile organic compounds.
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Wilderness areas.
Dated: July 11, 2012.
Susan Hedman,
Regional Administrator, Region 5.
Therefore, 40 CFR parts 52 and 81 are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.2585 is amended by adding paragraphs (z) and (aa) to read
as follows:
Sec. 52.2585 Control strategy: Ozone.
* * * * *
(z) Approval--Wisconsin submitted 2005 VOC and NOX
emissions inventories for the Milwaukee-Racine and Sheboygan areas on
September 11, 2009, and supplemented the submittal on November 16,
2011. Wisconsin's 2005 inventories satisfy the emissions inventory
requirements of section 182(a)(1) of the Clean Air Act for the
Milwaukee-Racine and Sheboygan areas under the 1997 8-hour ozone
standard.
(aa) Approval--On September 11, 2009, Wisconsin submitted a request
to redesignate the Milwaukee-Racine area to attainment of the 1997 8-
hour ozone standard. The state supplemented this submittal on November
16, 2011. As part of the redesignation request, the State submitted a
maintenance plan as required by section 175A of the Clean Air Act.
Elements of the section 175 maintenance plan include a contingency plan
and an obligation to submit a subsequent maintenance plan revision in 8
years as required by the Clean Air Act. The ozone maintenance plan also
establishes 2015 and 2022 Motor Vehicle Emission Budgets (MVEBs) for
the area. The 2015 MVEBs for the Milwaukee-Racine area is 21.08 tpd for
VOC and 51.22 tpd for NOX. The 2022 MVEBs for the Milwaukee-
Racine area is 15.98 tpd for VOC and 31.91 tpd for NOX.
PART 81--[AMENDED]
0
3. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
4. Section 81.350 is amended by revising the entries for Milwaukee-
Racine, WI in the table entitled Wisconsin--1997 8-Hour Ozone NAAQS
(Primary and Secondary) to read as follows:
Sec. 81.350 Wisconsin.
* * * * *
Wisconsin--1997 8-Hour Ozone NAAQS (Primary and Secondary)
----------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area -----------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Milwaukee-Racine, WI:
Kenosha County................ 7/31/12 Attainment...........
Milwaukee County..............
Ozaukee County................
Racine County.................
Washington County.............
Waukesha County...............
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
[[Page 45262]]
* * * * *
[FR Doc. 2012-18091 Filed 7-30-12; 8:45 am]
BILLING CODE 6560-50-P
