[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Rules and Regulations]
[Pages 29436-29444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11295]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2007-0957; FRL-8568-2]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of
Kewaunee County to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On June 12, 2007, the Wisconsin Department of Natural
Resources (WDNR) submitted a request to redesignate Kewaunee County to
attainment of the 8-hour ozone standard. EPA proposed to approve this
submission on December 11, 2007. EPA provided a 30-day review and
comment period. The comment period closed on January 10, 2008. EPA
received comments from the Sierra Club and the Door County Corporation
Counsel. EPA is approving Wisconsin's request and the associated
maintenance plan for continuing to attain the standard. As part of this
action, EPA is making a determination that Kewaunee County has attained
the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS).
This determination is based on complete, quality-assured ambient air
quality monitoring data for the 2004-2006 ozone seasons that
demonstrate that the 8-hour ozone NAAQS has been attained in Kewaunee
County. Monitoring data for 2007 continue to show monitored attainment
of the NAAQS. EPA is approving the maintenance plan for Kewaunee County
and is redesignating Kewaunee County to attainment. Finally, EPA is
approving, for purposes of transportation conformity, Wisconsin's 2012
and 2018 Motor Vehicle Emission Budgets (MVEBs) for Kewaunee County.
DATES: This final rule is effective May 21, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA R05 OAR 2007-0957. 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, Criteria Pollutant Section, Air Programs Branch (AR 18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886 1767, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. What is the background for this rule?
II. What comments did we receive on the proposed action?
III. What action 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).
On March 12, 2008, EPA Administrator Stephen L. Johnson signed a
rule promulgating a more
[[Page 29437]]
stringent 8-hour ozone standard of 0.075 ppm. This rule was published
in the Federal Register on March 27, 2008 (73 FR 16436). EPA will
designate nonattainment areas under the 2008 8-hour ozone standard in
2010. This rule only addresses the status of Kewaunee County with
respect to the 1997 8-hour ozone standard.
The background for today's actions with respect to the 1997 ozone
standard is discussed in detail in EPA's December 11, 2007, proposal
(72 FR 70255). In that rulemaking, we noted that, under EPA regulations
at 40 CFR part 50, the 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. (See 69 FR
23857 (April 30, 2004) for further information). The data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90%, and no single year has less than
75% data completeness, as determined in accordance with Appendix I of
Part 50.
Under the Clean Air Act (CAA), EPA may redesignate nonattainment
areas to attainment if sufficient complete, quality-assured data are
available to determine that the area has attained the standard and that
it meets the other CAA redesignation requirements in section
107(d)(3)(E).
On June 12, 2007, the WDNR submitted a request to redesignate
Kewaunee County to attainment of the 8-hour ozone standard. The request
included three years of complete, quality-assured data for the period
of 2004 through 2006, indicating the 8-hour NAAQS for ozone had been
achieved. The December 11, 2007, proposed rule provides a detailed
discussion of how Wisconsin met this and other CAA requirements.
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No.
04 1201, in response to several petitions for rehearing, the DC.
Circuit clarified that the Phase 1 Rule was vacated only with regard to
those parts of the rule that had been successfully challenged.
Therefore, the Phase 1 Rule provisions related to classifications for
areas currently classified under subpart 2 of Title I, part D of the
CAA as 8-hour nonattainment areas, the 8-hour attainment dates, and the
timing for emissions reductions needed for attainment of the 8-hour
ozone NAAQS, remain effective. The June 8th decision left intact the
Court's rejection of EPA's reasons for implementing the 8-hour standard
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule
that had not been successfully challenged. The June 8th decision
reaffirmed the December 22, 2006, decision that EPA had improperly
failed to retain four measures required for 1-hour nonattainment areas
under the anti-backsliding provisions of the regulations: (1)
Nonattainment area New Source Review (NSR) requirements based on an
area's 1-hour nonattainment classification; (2) Section 185 penalty
fees for 1-hour severe or extreme nonattainment areas; (3) measures to
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA,
contingent on an area not making reasonable further progress toward
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS;
and (4) certain transportation conformity requirements for certain
types of federal actions. The June 8th decision clarified that the
Court's reference to conformity requirements was limited to requiring
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations.
For the reasons set forth in the proposal, EPA does not believe
that the Court's rulings alter any requirements relevant to this
redesignation action so as to preclude redesignation. EPA believes that
the Court's December 22, 2006, and June 8, 2007, decisions impose no
impediment to moving forward with redesignation of this area to
attainment, because even in light of the Court's decisions,
redesignation is appropriate under the relevant redesignation
provisions of the CAA and longstanding policies regarding redesignation
requests.
With respect to the requirement for transportation conformity under
the 1-hour standard, the Court in its June 8th decision clarified that
for those areas with 1-hour motor vehicle emissions budgets in their
maintenance plans, anti-backsliding requires only that those 1-hour
budgets must be used for 8-hour conformity determinations until
replaced by 8-hour budgets. To meet this requirement, conformity
determinations in such areas must comply with the applicable
requirements of EPA's conformity regulations at 40 CFR part 93.
II. What Comments Did We Receive on the Proposed Action?
EPA provided a 30-day review and comment period. The comment period
closed on January 10, 2008. EPA received comments from Sierra Club and
the Door County Corporation Counsel. A summary of the comments
received, and EPA's responses, follow.
(1) Comment: Sections 172(c)(1) and 182(b)(2) of the CAA require
the SIP to mandate Reasonably Available Control Technology (RACT) for
all volatile organic compound (VOC) sources within the nonattainment
area. Wisconsin has not demonstrated that the SIP meets this
requirement. While Wisconsin promulgated some VOC RACT rules for the 1-
hour ozone standard, the State has not reviewed them to determine
whether they are still valid and sufficiently stringent under the 8-
hour standard.
Response: Under EPA's longstanding interpretation of section
107(d)(3)(E) of the CAA, to qualify for redesignation, states
requesting redesignation to attainment must meet only the relevant SIP
requirements that came due prior to the submittal of a complete
redesignation request. September 4, 1992, Calcagni memorandum
(``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division). See also Michael Shapiro Memorandum, September
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation
of Detroit-Ann Arbor). See Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004), which upheld this interpretation. See, e.g. also 68 FR 25418,
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
Kewaunee County was not classified under subpart 2 of the CAA and
thus was not subject to the section 182 RACT requirement. The
applicable part D, subpart 1, SIP requirements for Kewaunee County are
contained in sections 172(c)(1)-(9). The commentor specifically cites
section 172(c)(1), which requires reasonably available control measures
(RACM). For purposes of redesignation, a state must meet all
requirements of section 110 and part D that were applicable prior to
submittal of the complete redesignation request. The State of Wisconsin
submitted a complete ozone redesignation request for Kewaunee County
prior to the deadline for submissions required under section 172(c)(1)-
(9); therefore, these submissions are not applicable requirements for
purposes of redesignation.
[[Page 29438]]
Moreover, where EPA determines that an area is attaining the
standard, since the requirement for submission of an attainment
demonstration is suspended, and RACM is a component of an attainment
demonstration, the requirement for submission of RACM is suspended. 40
CFR 51.918, 70 FR 71645-71646 (November 29, 2005), General Preamble 57
FR 13498 (April 16, 1992).
The commentor also cites section 182(b)(2) of the CAA, which
requires RACT in areas classified as moderate or above. At the time the
redesignation request was submitted, Kewaunee County was not classified
under subpart 2 of the CAA and, therefore, was not subject to section
182(b)(2), which only applies to areas classified as moderate or above
under subpart 2 of the CAA.
It should be noted that the Court's ruling in South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 vacated the portion of
EPA's Phase 1 8-hour Ozone Implementation Rule that classified certain
areas under Subpart 1. In response to this vacatur, EPA is in the
process of developing a rule that will classify the areas that were
initially classified under subpart 1. EPA believes that, since EPA has
not yet determined these new classifications and requirements,
redesignation can now go forward. This belief is based upon: (1) EPA's
longstanding policy of evaluating requirements in accordance with the
requirements due at the time the request is submitted; and, (2)
consideration of the inequity of applying retroactively any
requirements that might in the future be applied.
(2) Comment: Wisconsin's Oxides of Nitrogen (NOX) RACT
rules have not yet been approved by EPA into the Wisconsin SIP.
Therefore, Wisconsin does not meet the requirement to have a fully
approved SIP.
Response: Under section 182(f) of the CAA, NOX RACT is
required in areas classified as moderate or above under subpart 2 of
the CAA. As discussed in greater detail above, Kewaunee County was not
classified under subpart 2 of the CAA and thus is not subject to the
requirements of section 182(f).
(3) Comment: Wisconsin does not have a fully approved SIP because
it has failed to submit the nonattainment SIP for the 8-hour ozone
standard, which was due June 15, 2007. Unless Wisconsin has a fully
approved nonattainment SIP in place for 8-hour ozone, the Administrator
is prohibited from approving Wisconsin's redesignation request.
Response: As discussed above, it is EPA's longstanding
interpretation of section 107(d)(3)(E) of the CAA that, to qualify for
redesignation, states requesting redesignation to attainment must meet
only the relevant SIP requirements that came due prior to the submittal
of a complete redesignation request. Applicable requirements of the CAA
that come due subsequent to the state's submittal of a complete request
remain applicable until a redesignation to attainment is approved, but
are not required as a prerequisite to redesignation. See section
175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St.
Louis/East St. Louis area to attainment of the 1 hour ozone NAAQS).
The State of Wisconsin submitted a complete ozone redesignation
request for Kewaunee County prior to the deadline for submission of an
attainment demonstration; therefore, an attainment demonstration is not
an applicable requirement for purposes of redesignation. Moreover,
where EPA determines that an area is attaining the standard, an
attainment demonstration is not an applicable requirement for purposes
of redesignation, since attainment has already been reached.
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' from John Calcagni, Director, Air Quality Management
Division, to Regional Air Division Directors, September 4, 1992 and
General Preamble 57 FR 13564 (April 16, 1992). See also 40 CFR 51.918.
(4) Comment: Wisconsin has not submitted a SIP to control mercury.
Therefore, Wisconsin's SIP is incomplete and EPA cannot redesignate any
area as in attainment.
Response: EPA promulgated the Clean Air Mercury Rule under section
111(d) of the CAA. Therefore, the submission of a plan to control
mercury is not required under subpart 1 as part of an ozone SIP, and is
irrelevant to the approval of an ozone redesignation. Wisconsin has met
all currently applicable SIP requirements for purposes of redesignation
for Kewaunee County under Section 110 and part D of the CAA, as
required by section 107(d)(3)(E)(v) of the CAA.
(5) Comment: Wisconsin lacks adequate funding and personnel to
provide a user-friendly Web site for its permits, to respond to EPA
comments regarding Prevention of Significant Deterioration (PSD)
permits, and maintain organized files accessible to the public. These
shortcomings were identified by EPA as part of its review of the
State's PSD program in 2006. Until the funding and resources issues are
resolved, EPA may not approve the redesignation.
Response: EPA approved Wisconsin's PSD program on May 27, 1999 (64
FR 28745). EPA may rely on prior SIP approvals in approving a
redesignation request. See Calcagni Memorandum, page 3, Southwestern
Pennsylvania Growth Alliance v. Browner. 144 F. 3d 984,989-990 (6th
Cir. 1998), Wall v. EPA, 265 F.3d 426 (6th Cir. 2001). The review to
which the commentor refers was part of the national NSR Program
Evaluation Project. These permit program reviews were intended to
highlight the positive aspects of a state's air permitting program and
to foster quality improvements in the program. In that report, EPA
highlighted many program strengths, including ``a good modeling
program, a good public comment process, and overall clear and well-
organized permits.'' The report goes on to find that WDNR maintains a
Web site containing all permit actions, has consistently logged Best
Available Control (BACT) and Lowest Achievable Emission Rate (LAER)
determinations into the RACT/BACT/LAER/Clearinghouse, has a program for
improving the quality and issuance of permits and works with EPA to
ensure decisions for determinations are made based on EPA policy. In
the report, EPA found a few areas which could be improved. EPA
suggested that WDNR could be more prompt in sending applications for
PSD projects, improve its permit tracking system and be more prompt in
responding to permit comments before the final permit is issued. EPA
did not find Wisconsin's PSD SIP to be deficient, and believes that
Wisconsin has adequate personnel and funding to carry out its plan.
Section 110(a)(2)(E).
(6) Comment: Wisconsin has not specified contingency measures
should Kewaunee County not attain the 8-hour standard in the future.
Instead, Wisconsin proposes to ``evaluate the sufficiency of control
measures that have already been promulgated, but not fully implemented
at the time of violation, to return the area to attainment'' and then,
at an unspecified future time ``determine that additional [unspecified]
measures are necessary to return the area to attainment * * * from the
list. * * *''
Response: Wisconsin has included a list of potential contingency
measures in its maintenance plan. These include: reduced VOC content in
the Architectural, Industrial and Maintenance coatings rule and/or
commercial and consumer products rule and/or federal vehicle toxics
rule and broadening the application of the NOX
[[Page 29439]]
RACT program. Wisconsin has specified the triggering event as a
violation and has committed to implement appropriate contingency
measures within eighteen months. Thus, the state has identified a
schedule and procedure for adoption and implementation, and a time
limit for action by the State. Because it is not possible, however, to
determine what control measure will be most appropriate and effective
should a contingency measure be triggered at some point in the future,
Wisconsin is not limited to selecting measures only from its list. If a
contingency measure is triggered, the State can adopt a contingency
measure from this list or choose another contingency measure which has
been determined to be effective.
A state can choose as its contingency measure any adopted but not
fully implemented control measure providing that it is not included in
the calculation of the maintenance inventory. The emissions reductions
from these programs are real, not considered in maintenance plan
emissions budgets, and can be achieved more quickly since the state has
already gone through the adoption process. Wisconsin goes beyond this
minimal requirement by committing to evaluate the sufficiency of these
control measures to return the area to attainment. To prohibit a state
from using any control measure adopted prior to the actual triggering
of a contingency measure would only penalize states that are proactive
in addressing anticipated air quality problems. EPA's approval of
measures that have already been adopted has been upheld in the
analogous context of section 172(c)(9) contingency measures. Louisiana
Environmental Action Network v. EPA, 382. F.3d 575 (Fifth Cir. 2004).
EPA concludes that there is adequate assurance that the State will
promptly correct a violation of the NAAQs that occurs after
redesignation. Section 175A and section 107(d)(3)(E).
(7) Comment: Wisconsin does not have a fully approved SIP because
it has not yet complied with the Credible Evidence Rule (62 FR 8314).
Response: Wisconsin's SIP is consistent with the Credible Evidence
Rule. Specifically, Wisconsin rule NR439.06 states, ``Notwithstanding
the compliance determination methods which the owner or operator of a
source is authorized to use under this chapter, the department may use
any relevant information or appropriate method to determine a source's
compliance with applicable emission limitations.'' This rule was
approved by EPA on August 15, 1994 (59 FR 41709) with respect to VOCs,
and on May 27, 1999 (64 FR 28745) with respect to all pollutants.
Further, credible evidence requirements for a state are not linked with
a particular nonattainment area's designation and classification in
that state. EPA believes that the requirements linked with a particular
nonattainment area's designation and classification are the relevant
measures to evaluate in reviewing a redesignation request. The credible
evidence SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state. 61 FR 53174-53176 (October 10, 1996), 61 FR 20458
(May 7, 1996); 60 FR 62748 (December 7, 1995), 65 FR 37890 (June 19,
2000), 66 FR 50399 (October 19, 2001). Section 110 elements not linked
to the area's nonattainment status are not applicable for purposes of
redesignation.
(8) Comment: To qualify for redesignation, section
107(d)(3)(E)(iii) of the CAA requires that the improvement in air
quality be ``due to permanent and enforceable reductions in emissions *
* *.'' Wisconsin's request for redesignation does not make this
showing, instead, it shows a calculated reduction, which is neither
real nor permanent and enforceable.
Response: Wisconsin has calculated the change in emissions between
2002, one of the years used to designate the area as nonattainment, and
2005, one of the years Kewaunee County monitored attainment. See Tables
3, 4 and 5 at 72 FR 70262. The reduction in emissions and the
corresponding improvement in air quality over this time period can be
attributed to a number of permanent and enforceable regulatory control
measures that Kewaunee County and upwind areas have implemented in
recent years. Kewaunee County is impacted by the transport of ozone and
ozone precursors from upwind areas. Therefore, local controls as well
as controls implemented in upwind areas are relevant to the improvement
in air quality in Kewaunee County.
Wisconsin adopted NOX controls for large existing
sources and established emissions standards for new sources as part of
its rate of progress plan under the 1-hour ozone standard. Reductions
in VOC and NOX emissions have occurred statewide and in
upwind areas as a result of federal emission control measures, with
additional emission reductions expected to occur in the future. Federal
emission control measures include: Maximum Achievable Control
Technology Standards, the National Low Emission Vehicle (NLEV) program,
Tier 2 emission standards for vehicles, gasoline sulfur limits, low
sulfur diesel fuel standards, and heavy-duty diesel engine standards.
On October 27, 1998 (63 FR 57356), EPA issued a NOX SIP call
requiring the District of Columbia and 22 states to reduce emissions of
NOX. In Michigan, Illinois, and Indiana alone, the
NOX SIP call has been responsible for a reduction in ozone
season NOX emissions in excess of 196,400 tons between 2000
and 2004. The reduction in NOX emissions has resulted in
lower concentrations of transported ozone entering Kewaunee County.
(9) Comment: Wisconsin's redesignation request purports to show a
decrease in actual emissions, through permanent and enforceable
measures, between 2002 and 2005, claiming that ``Wisconsin has
documented specific permanent and enforceable programs responsible for
emission reductions over this time period.'' The emission reductions
``appear to be either a result of a different metric to calculate
emissions in 2002 versus 2005, or due to unenforceable and non-
permanent reductions.'' For example, emissions from point sources and
nonpoint sources in Appendix 4 are calculated based on variables such
as vehicle miles traveled, amount of fuel combusted, and county
employment. These variables directly affect the emissions from year to
year, but are neither permanent nor enforceable. Therefore, Wisconsin's
submission does not demonstrate that any such decreases are due to
permanent and enforceable reductions.
Response: It is not necessary for every change in emissions between
the nonattainment year and the attainment year to be permanent and
enforceable. Rather, it is necessary for the improvement in air quality
to be reasonably attributable to permanent and enforceable reductions
in emissions. As discussed above, Kewaunee County 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. Wisconsin adopted NOX controls
for large existing sources and established emissions standards for new
sources as part of its rate of progress plan under the 1-hour ozone
standard. Reductions in VOC and NOX emissions have occurred
statewide and in upwind areas as a result of federal emission control
measures, with additional emission reductions expected to occur in the
future. Federal emission control measures include: Maximum Achievable
Control Technology Standards, the NLEV program, Tier 2
[[Page 29440]]
emission standards for vehicles, gasoline sulfur limits, low sulfur
diesel fuel standards, and heavy-duty diesel engine standards. On
October 27, 1998 (63 FR 57356), EPA issued a NOX SIP call
requiring the District of Columbia and 22 states to reduce emissions of
NOX. In Michigan, Illinois, and Indiana alone, the
NOX SIP call has been responsible for a reduction in ozone
season NOX emissions in excess of 196,400 tons between 2000
and 2004.
Further, Wisconsin has followed EPA guidance in development of
inventories for 2002 and 2005. For the nonroad sector, the same version
of the National Mobile Inventory Model (NMIM) was run for both years.
The reduction in emissions from 2002-2005 is the result of fleet
turnover and emissions controls, not differences in methodology. With
respect to the onroad sector, MOBILE6.2.03 was run for both years, with
an increase in vehicle miles traveled between 2002 and 2005. The
reduction in emissions is due to federal motor vehicle control programs
and fleet turnover, not differences in methodology. With respect to
area sources, Wisconsin used appropriate emission calculation
methodologies. While there were some minor changes in emissions factors
or throughput for some area source categories, these were minor and did
not greatly affect the overall inventory. Wisconsin did not claim area
source emission reductions between 2002 and 2005. Point source
methodology remained consistent between the 2002 and 2005 inventories.
Point source emissions were estimated by collecting process-level
information for each facility. Typically throughput information was
multiplied by an emission factor for that process. Emission factor
sources included mass balance, stack testing, continuous emissions
monitors, engineering judgment and EPA's Factor Information Retrieval
database.
(10) Comment: In Appendix 4, there were different emission factors
applied in 2002 and 2005, or a different method for calculating
emissions was used, with 2005 emission factors or methods generally
resulting in lower emissions than the factors or methods applied in
2002. For example, the emission factors for fuel combustion in 2005 are
much lower than the factors used to calculate 2002 emissions. While
emission factors may have been updated to be more accurate, the mere
updating of emission factors from one year to another does not result
in lower emissions. If Wisconsin is to demonstrate that emissions
actually decreased between 2002 and 2005, the same emission factor must
be applied in both reference years.
Response: Wisconsin followed EPA guidance in development of
inventories for 2002 and 2005. For the nonroad sector, the same version
of NMIM was run for both years. The reduction in emissions from 2002-
2005 is the result of fleet turnover and federal motor vehicle control
programs, not differences in methodology. With respect to the onroad
sector, MOBILE6.2.03 was run for both years, with an increase in
vehicle miles traveled between 2002 and 2005. The reduction in
emissions can be attributed to federal motor vehicle control programs
and fleet turnover, not differences in methodology. Point source
methodology also remained consistent between the 2002 and 2005
inventories. While there were some minor changes in emissions factors
or throughput for some area source categories, these were minor and did
not greatly affect the overall inventory. Wisconsin did not claim area
source emission reductions between 2002 and 2005. The emission factors
for the area source fuel combustion category did change, as the
commentor stated. This category is such a small portion of the entire
inventory, however, that these tiny differences are irrelevant. In
2005, the area source fuel combustion category represents 0.08% of the
VOC inventory for Kewaunee County and 2.6% of the NOX
inventory. Between 2002 and 2005, emissions from the fuel combustion
category decreased by 0.054 tons per day for VOC and increased by 0.011
tons per day for NOX. We do not believe that the difference
in emissions calculation methodology in any way affects Wisconsin's
demonstration that the improvement in air quality in Kewaunee County
was due to a permanent and enforceable reduction in emissions.
(11) Comment: One of the most significant sources of ozone-causing
pollution is fossil fueled electricity generation. The WDNR calculates
NOX emission reductions for these units based on a
comparison of historical actual emissions. Actual emissions in 2005 are
not the enforceable emission rates and do not represent a permanent and
enforceable reduction. Because the sources could have emitted
significantly more in 2005, and could in the future, these facilities'
actual emissions cannot be used to show a permanent and enforceable
reduction between 2002 and 2005. The failure to rely on enforceable
emission rates is unlawful and arbitrary.
Response: There are no fossil fueled electricity generation units
in Kewaunee County. Therefore, emissions from these facilities were not
included or considered as part of the maintenance plan inventory for
Kewaunee County. It should be noted, however, that the NOX
SIP call issued by EPA on October 27, 1998, required the District of
Columbia and 22 states to reduce emissions of NOX. In
Michigan, Illinois, and Indiana alone, the NOX SIP call has
been responsible for a reduction in ozone season NOX
emissions in excess of 196,400 tons between 2000 and 2004. These
emission reductions are primarily in the fossil fueled electricity
generation sector. This reduction in NOX emissions has
resulted in a reduction of ozone and ozone precursors being transported
into Kewaunee County.
(12) Comment: EPA has not adopted Wisconsin's RACT rules for
electric generating units into the Wisconsin SIP. Nevertheless
Wisconsin's redesignation submission assumes that RACT rules for
NOX are in place in the future as part of the demonstration
that the purported historical improvement in ozone concentrations is
due to enforceable reductions in emissions. This reliance on future
regulations as a basis for a historical improvement in air quality is
unlawful and arbitrary. Even if future reductions in emissions could be
used to make the demonstration under section 107(d)(3)(E)(iii),
Wisconsin's reliance on RACT rules is unlawful and arbitrary because
the RACT rules are not final.
Response: Wisconsin has adopted NOX RACT rules which are
currently under review by EPA. These rules apply to the Milwaukee-
Racine and Sheboygan nonattainment areas and will result in future
upwind reductions in emissions. While Wisconsin included these rules in
the discussion of permanent and enforceable control measures, WDNR did
not, in fact, take credit for these projected NOX RACT
reductions in demonstrating a permanent and enforceable reduction in
emissions between the years 2002 and 2005 and EPA is not relying on
them as a basis for finding that this criterion for redesignation has
been met.
(13) Comment: Section 175A(d) of the CAA requires that the
maintenance plan ``include a requirement that the State will implement
all measures with respect to the control of the air pollutant concerned
which were contained in the State implementation plan for the area
before designation of the area as an attainment area.'' Such measures
include the New Source Review (NSR) program. These measures, contained
in Wisconsin Administrative Code NR 408, are not included in the
maintenance plan being proposed by the Department. As EPA has
explained, ``the State will be expected to maintain its implemented
control strategy despite
[[Page 29441]]
redesignation to attainment, unless such measures are shown to be
unnecessary for maintenance or are replaced with measures that achieve
equivalent reductions.'' However, upon redesignation, Kewaunee County
sources would no longer be subject to rule NR 408, effectively removing
sources from the control strategy. This is unlawful and redesignation
cannot be approved unless and until rule NR 408 is redrafted such that
it continues to apply in Kewaunee County after redesignation.
Response: 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.
United States EPA, 370 F. 3d 527, 535-38 (6th Cir. 2004). (Court finds
persuasive 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
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 their construction will not
increase ambient concentrations significantly and will not result in
concentrations above the air quality standard. The State has
demonstrated that the area will be able to maintain the standard
without Part D NSR in effect, and the State's PSD program will become
effective in the area 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) (Redesignation of Detroit, MI);
61 FR 20458, 20469-20470 (May 7, 1996) levels (Cleveland-Akron-Lorrain,
OH); 66 FR 53665, 53669 (October 23, 2001) (Louisville, KY); 61 FR
31831, 31836-31837 (June 21, 1996) (Grand Rapids, MI).
(14) Comment: The United States Court of Appeals for the District
of Columbia held in South Coast Air Quality Management District v.
Environmental Protection Agency, that controls established in an area
under the 1-hour ozone standard, including NSR requirements, must
remain in place pursuant to the anti-backsliding provision of section
172(e) of the CAA. The court held that anything ``designed to constrain
ozone levels is a `control' pursuant to the anti-backsliding provisions
in section 172(e), and cannot be relaxed even when an area is
reclassified as a lower nonattainment designation.'' The existing
nonattainment NSR program in effect for Kewaunee County Wisconsin is a
``control'' which cannot be relaxed. The redesignation would result in
the nonattainment NSR provisions no longer applying to Kewaunee County
sources. This is an unlawful relaxation of ``controls'' established in
nonattainment areas of Wisconsin. This violates the anti-backsliding
provision in section 172(e). EPA cannot approve the redesignation until
Rule NR 408 is revised to ensure that it continues to apply to sources
in Kewaunee County, which was designated as nonattainment for 1-hour
ozone under the 1990 Amendments to the CAA.
Response: The Kewaunee County area is an attainment area subject to
a CAA section 175A maintenance plan under the 1-hour standard. The
anti-backsliding issues before the DC Circuit concerned whether an area
designated nonattainment could rely on a less stringent nonattainment
NSR program for the 8-hour standard instead of the more stringent
program that had applied to the nonattainment area based on its 1-hour
nonattainment classification. The issue before the court did not
concern whether an area designated attainment is required to implement
a nonattainment NSR review program. Sections 161 and 172(b) of the CAA
make clear that areas not designated nonattainment are subject to the
PSD program, not the NSR program that applies in nonattainment areas.
(15) Comment: EPA rules explicitly require maintenance
demonstrations to be supported by modeling (40 CFR 51.112 and 65 FR
6711). Until Wisconsin conducts such a modeling demonstration, EPA
cannot approve the maintenance plan.
Response: A maintenance demonstration need not be based on
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v.
EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100
(October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003). 40 CFR
51.112 provides in relevant part that ``[e]ach plan must demonstrate
that the measures, rules and regulations contained in it are adequate
to provide for the timely attainment and maintenance of the national
standard that it implements.'' Both the language and the context of
this regulation indicate that it applies to attainment demonstrations,
and not to stand-alone maintenance plans submitted under CAA section
175A. There is no reference in the regulation to modeling requirements
applicable to a section 175A plan revision for the sole purpose of
providing maintenance and not attainment. EPA policy and longstanding
practice allows States to demonstrate maintenance by preparing an
attainment emissions inventory corresponding to the period during which
the area monitored attainment, and to project maintenance by showing
that future emissions are projected to remain below this level for the
next ten years. See Calcagni memo. Holding emissions at or below the
level of attainment is adequate to reasonably assure continued
maintenance of the standard. See 65 FR 37879, 37888 (June 19, 2000).
Moreover, since EPA has determined that the area is in actual
attainment of the 8-hour ozone standard, the requirement for submission
of an attainment demonstration is no longer applicable. 40 CFR 51.918.
Furthermore, regional modeling performed by the Lake Michigan Air
Directors Consortium to support attainment planning efforts for the
states of Wisconsin, Illinois, Indiana, Michigan and Ohio shows
continued attainment of the NAAQS in Kewaunee County in 2009, 2012 and
2018. See ``Regional Air Quality Analyses for Ozone, PM2.5, and
Regional Haze: Final Technical Support Document,'' dated April 25,
2008.
(16) Comment: Because NR 408 would not apply to Kewaunee County
after redesignation, the proposal to redesignate Kewaunee County is
effectively a proposal to remove the NSR provisions. This violates
section 110(l) of the CAA which states that ``the administrator may not
approve a revision of a plan if the revision would interfere with any
reasonable applicable requirement concerning attainment and reasonable
further progress * * * or any other applicable requirement of this
chapter.'' Increasing the major source threshold, lowering the control
technology requirements, and removing the offset requirements all will
result in increased air pollution and interfere with both attainment
and reasonable further progress.
Response: Section 110(l) provides that the Administrator shall not
approve a SIP revision ``if the revision would
[[Page 29442]]
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171), or any other
applicable requirement of this Act.'' Kewaunee County is monitoring
attainment of the NAAQS and, thus, there is no need for ``reasonable
further progress'' toward attainment. Furthermore, Wisconsin is not
revising the applicability or terms of its NSR program. It is true that
certain requirements of the Clean Air Act and the Wisconsin SIP (such
as NSR) do not apply in attainment areas. However, EPA does not believe
that fact means that a decision to redesignate an area as attainment is
``interfering'' with attainment or with requirements that apply only to
nonattainment areas. For the reasons set forth above and in the
proposal, EPA believes that Wisconsin's maintenance plan is adequate to
maintain attainment for at least 10 years, and therefore concludes that
this action will not interfere with attainment or reasonable further
progress, or any other applicable CAA requirement.
(17) Comment: The commentor states that he does not oppose the
Kewaunee County redesignation, but makes the following points. Upwind
sources of ozone and its precursors cause or contribute significantly
to downwind (e.g. Door County) non-compliance with NAAQS. Local and
long-range transport of ozone and its precursors have and will continue
to preclude downwind attainment of the NAAQS. The overarching goal is
to reduce emissions so that the NAAQS are universally met. Reducing
emissions upwind is the only means to decrease concentrations downwind.
The commentor suggests that rather than focusing on redesignation, EPA
should find the upwind sources that cause or contribute significantly
to downwind non-compliance with ozone standards, regulate emissions
from upwind regions to address the issue of transport and allow
downwind areas a fair opportunity to achieve compliance, and place a
moratorium on upwind sources being deemed to have attained the NAAQS if
impacted downwind areas continue to show monitored nonattainment of the
NAAQS.
Response: This rule is a redesignation action that is designed to
determine whether an area has met the requirements for redesignation to
attainment. Considerations of how to address issues of transport from
upwind areas are not related to the current redesignation action. As
noted in the proposal, section 110(a)(2)(D) of the CAA, which requires
that SIPs contain certain measures to prevent sources in a state from
significantly contributing to air quality problems in another state,
continues to apply to the state regardless of the attainment
designation of an area. The requirements of section 110(a)(2)(D) are
not linked with a particular nonattainment area's designation and
classification in that state. Therefore, these requirements are not
applicable for purposes of redesignation. See 65 FR 37890 (June 19,
2000), 66 FR 50399 (October 19, 2001) and 68 FR 25418, 25426-25427 (May
12, 2003).
That being said, however, EPA has long recognized that ozone
transport is a problem affecting many portions of the eastern United
States. The Lake Michigan region both receives high levels of
transported ozone and ozone precursors from upwind source areas and
contributes to the high levels of ozone and ozone precursors affecting
downwind receptor areas. Downwind shoreline areas around Lake Michigan
are affected by both regional transport of ozone and subregional
transport from major urban areas in the Lake Michigan region.
Considerable progress has been made in reducing transported
pollution. EPA promulgated and States have implemented the
NOX SIP call, which has significantly reduced NOX
emissions throughout the eastern half of the United States. In
Michigan, Illinois, and Indiana alone, the NOX SIP call has
been responsible for a reduction in ozone season NOX
emissions in excess of 196,400 tons between 2000 and 2004. Other
federal measures including the NLEV program, Tier 2 emission standards
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards,
and heavy-duty diesel engine standards continue to be implemented and
will result in reductions in upwind emissions. In addition, EPA
finalized the Clean Air Interstate Rule (CAIR) on May 12, 2005. CAIR is
designed to achieve large reductions of Sulfur Dioxide (SO2) and/or
NOX emissions across 28 eastern states and the District of
Columbia and specifically addresses the transported pollution from
upwind states that affects downwind air quality problems. (Illinois,
Indiana, Wisconsin and Michigan are all subject to CAIR.) SO2 and
NOX contribute to the formation of fine particles and
NOX contributes to the formation of ground-level ozone.
III. What Action Is EPA Taking?
EPA is taking several related actions for Kewaunee County. First,
EPA is making a determination that Kewaunee County has attained the
1997 8-hour ozone NAAQS. EPA is also determining that Kewaunee County
has met the requirements for redesignation under section 107(d)(3)(E)
of the CAA, and EPA is, therefore, approving the State's request to
change the legal designation of Kewaunee County from nonattainment to
attainment of the 8-hour ozone NAAQS. Further, EPA is approving as
meeting the requirements of CAA section 175A Wisconsin's maintenance
plan SIP revision for Kewaunee County (such approval being one of the
CAA criteria for redesignation to attainment status. Section
107(d)(3)(E)(iv)). Finally, for Kewaunee County, EPA is approving the
2012 MVEBs of 0.43 tpd of VOC and 0.80 tpd of NOX and 2018
MVEBs of 0.32 tpd of VOC and 0.47 tpd of NOX.
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 Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act 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 Clean Air Act.
Accordingly, this action merely affects the status of a geographical
area and
[[Page 29443]]
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 21, 2008. 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, Intergovernmental
relations, Nitrogen oxides, Ozone, Volatile organic compounds.
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Wilderness areas.
Dated: May 12, 2008.
Bharat Mathur,
Acting Regional Administrator, Region 5.
0
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.
Subpart YY--Wisconsin
0
2. Section 52.2585 is amended by adding paragraph (u) to read as
follows:
Sec. 52.2585 Control strategy: Ozone.
* * * * *
(u) Approval--On June 12, 2007, Wisconsin submitted a request to
redesignate Kewaunee County to attainment of the 8-hour ozone standard.
As part of the redesignation request, the State submitted an ozone
maintenance plan as required by section 175A of the Clean Air Act. Part
of the section 175A maintenance plan includes a contingency plan. The
ozone maintenance plan establishes 2012 motor vehicle emissions budgets
for Kewaunee County of 0.43 tons per day of volatile organic compounds
(VOC) and 0.80 tons per day of nitrogen oxIdes (NOX) and
2018 motor vehicle emissions budgets for Kewaunee County of 0.32 tons
per day of VOCs and 0.47 tons per day of 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 entry for Kewaunee County,
WI: Kewaunee County in the table entitled ``Wisconsin--Ozone (8-Hour
Standard)'' to read as follows:
Sec. 81.350 Wisconsin.
* * * * *
[[Page 29444]]
Wisconsin--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
Designation \a\ Classification
Designated area -------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Kewaunee County, WI:
Kewaunee County. 5/21/08 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.
[FR Doc. E8-11295 Filed 5-20-08; 8:45 am]
BILLING CODE 6560-50-P