[Federal Register Volume 61, Number 166 (Monday, August 26, 1996)]
[Rules and Regulations]
[Pages 43668-43675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21697]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[WI70-02-7299 and WI71-02-7300; FRL-5553-1]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On June 5, 1996, and June 11, 1996, the Environmental
Protection Agency (EPA) published a proposal to approve the
redesignations to attainment and associated maintenance plans for the
ozone National Ambient Air Quality Standard (NAAQS) for the Wisconsin
counties of Walworth, and Kewaunee, Manitowoc, and Sheboygan,
respectively. The 30-day comment periods concluded on July 5, 1996, for
Walworth County and on July 11, 1996 for the remaining three counties.
Two comment letters were received in response to the proposed
rulemakings, both from the Citizens Commission for Clean Air in the
Lake Michigan Basin. This final rule summarizes all comments and EPA's
responses, and finalizes the approval of the redesignations to
attainment for ozone and associated maintenance plans for Walworth,
Sheboygan, and Kewaunee Counties. Manitowoc County is not being
finalized at this time due to a possible monitored exceedance of the
ozone standard in that county. The monitored exceedance, as yet, has
not been subject to the standard quality assurance procedures. If the
exceedance is validated, it would be the fourth exceedance over the
past three years and would therefore constitute a violation at the
Manitowoc County Woodland Dunes monitor.
EFFECTIVE DATE: This action will be effective August 26, 1996.
ADDRESSES: Copies of the SIP revisions, public comments and EPA's
responses are available for inspection at the following address: (It is
recommended that you telephone Randy Robinson at (312) 353-6713 before
visiting the Region 5 Office.) United States Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Randy Robinson, Regulation Development
Section (AR-18J), Air Programs Branch, Air and Radiation Division,
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312) 353-
6713.
SUPPLEMENTARY INFORMATION:
I. Background Information
The redesignation requests and maintenance plans for the Walworth
County marginal nonattainment area and the Kewaunee, Manitowoc, and
Sheboygan Counties moderate ozone nonattainment areas discussed in this
final rule were submitted to EPA by the WDNR on December 15, 1995, and
May 15, 1996, respectively. On June 5, 1996, the EPA published in the
Federal Register a proposal to approve the redesignation request and
associated section 175A maintenance plan for Walworth County as a
revision to the Wisconsin ozone SIP (61 FR 28541). The proposed
approval of the Kewaunee, Sheboygan, and Manitowoc Counties
redesignation requests and maintenance plans was published on June 11,
1996 (61 FR 29508). Comments were received regarding the proposed
rulemakings. Additionally, preliminary exceedances of the ozone
National Ambient Air Quality Standard (NAAQS) were monitored in
Manitowoc County during the 30 day comment period. If these exceedances
are validated, it would mean that Manitowoc County is in violation.
Consequently, EPA is not taking final action on the request for
redesignation to attainment and maintenance plan for Manitowoc County
at this time. The EPA will continue to work with the State to address
the Manitowoc situation. This notice does not, therefore, further
discuss the Manitowoc redesignation action.
The final rule contained in this document addresses the comments
which were received during the public comment period and announces
EPA's final action regarding the redesignations and section 175A
maintenance plans for Walworth, Kewaunee, and Sheboygan Counties.
II. Public Comments and EPA Responses and Final Rulemaking Actions
The following discussion summarizes and responds to the comments
received regarding the proposed redesignations to attainment for
Walworth, Kewaunee, and Sheboygan Counties. Walworth County was
proposed in a separate rulemaking from Kewaunee and Sheboygan Counties.
A set of comments was received for Walworth County on July 5, 1996. A
set of comments was received for Kewaunee and Sheboygan Counties on
July 11, 1996. However, the bulk of the comments dealt with matters
common to both rulemakings. The first part of this section addresses
these common comments. The second part will address comments pertaining
to a specific area.
Comment: The commentor states that redesignating the counties of
Walworth, Kewaunee, and Sheboygan to attainment for ozone is
``inappropriate without additional safeguards''. The commentor
primarily singles out the contingency plan as inadequate to address
future ozone violations caused by emissions from upwind areas.
Response: Section 107(3)(d)(E) of the Clean Air Act (Act) sets out
the criteria which must be met before an area can be redesignated to
attainment. These
[[Page 43669]]
criteria are: (i) The Administrator determines that the area has
attained the NAAQS; (ii) the Administrator has fully approved the
applicable implementation plan for the area under section 110(k); (iii)
the Administrator determines that the improvement in air quality is due
to permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions; (iv) the Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175A; and (v) the State containing such area has met all requirements
applicable to the area under section 110 and part D. It is appropriate
to redesignate the counties of Walworth, Sheboygan, and Kewaunee to
attainment for ozone because EPA has determined that they meet the
specific criteria and are therefore eligible for redesignation to
attainment.
As mentioned above, the first criterion requires that the area has
attained the NAAQS. If a violation of the NAAQS does occur after the
redesignation of an area to attainment, section 175A(d) of the Act
requires that the State Implementation Plan for the area contain
contingency provisions which would promptly correct the violation. The
mechanism that would trigger the implementation of contingency measures
in each of the three Wisconsin counties is a monitored violation of the
NAAQS determined to be caused by local sources. The EPA believes that
this triggering mechanism is appropriate given the overwhelming
evidence demonstrating that Walworth, Sheboygan and Kewaunee Counties
are the recipients of transported ozone and ozone precursors from
upwind areas, such as the Milwaukee-Racine and Chicago-Gary areas. The
EPA believes that this triggering mechanism satisfies the requirement
of section 175A(d), because if a violation is due to transport, then
control measures implemented in the violating area will not correct the
violation, which is the stated purpose of the section 175(A)(d)
contingency provisions.
If violations of the ozone NAAQS are monitored in the redesignated
counties, current evidence indicates that emission reductions will
likely be needed from upwind areas in order for the violation to be
corrected. The upwind areas of immediate concern are the Milwaukee-
Racine and Chicago-Gary severe-17 nonattainment areas. It is reasonable
to consider the current and future emission reductions that will occur
in these upwind areas, as measures that will reduce future ozone
concentrations in the immediate nonattainment areas as well as in areas
downwind. The severe-17 nonattainment areas have attainment dates of
2007. As a result of this classification, the areas will have to
achieve significant reductions in ozone precursor emissions prior to
the area's attainment date, as part of the States' obligations to
comply with the rate-of-progress requirements of section 182(c)(2).
Many of the reductions have already occurred or will occur well before
the year 2007. The EPA considers these requisite reduction measures to
effectively address any future elevated concentrations of ozone in the
downwind counties of Kewaunee, Sheboygan and Walworth, attributable to
transport from the Milwaukee and Chicago areas. These Act measures are
mandatory and have been or will be implemented in accordance with a
schedule that ensures that the severe-17 nonattainment areas achieve
continuous progress toward attainment. Also, the 15 percent plan, which
has been approved for the Wisconsin ozone nonattainment areas (61 FR
11735), contains contingency measures that would provide reductions in
the event that the State is unable to show a 15 percent reduction in
VOC's, from the year 1990 to 1996, in the nonattainment areas. The EPA
believes it appropriate to consider these measures (those needed to
comply with the rate-of-progress provisions and the section 172(c)(9)
contingency measures) to be contingency measures under section 175A(d)
for the Wisconsin counties being redesignated since they should serve
to correct any violations attributable to transport and either are or
are required to be included in the Wisconsin SIP. In essence, locally
caused violations will be dealt with through locally implemented
contingency measures while transport caused violations would be dealt
with through control measures being implemented in upwind areas.
Additionally, reductions of emissions from upwind sources will likely
be implemented as a result of the work currently being done by the
Ozone Transport Assessment Group. This group, made up of State and
Federal environmental agencies, environmental groups, and industry, is
charged with evaluating and recommending regional control strategies
that will help reduce the amount of transported ozone and precursors.
The EPA intends to use its regulatory authority to ensure
implementation of these control strategies. The reductions resulting
from these strategies will assist urban areas in their efforts to
demonstrate attainment as well as to lower the concentration of ozone
found in more rural areas, such as the three Wisconsin counties.
Comment: The commentor states that EPA is not enforcing existing
prohibitions against interstate pollution. The commentor elaborates by
citing section 110(a)(2)(D) and section 126 as Act provisions giving
EPA the authority to demand emission reductions from States
contributing to nonattainment in downwind areas. Section
110(a)(2)(D)(I)(I) requires that the SIP ``contain adequate provisions
prohibiting, consistent with the provisions of this title, any source
or other type of emissions activity within the State from emitting any
air pollutant in amounts which will contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
with respect to any such national primary or secondary ambient air
quality standard, * * * ''
Response: Nothing in section 110(a)(2)(D) prohibits EPA from
approving the redesignation requests for Walworth County or for
Kewaunee and Sheboygan Counties. Section 110(a)(2)(D) applies to the
Milwaukee-Chicago-Gary nonattainment areas. The SIP revisions that will
achieve the necessary reductions for these areas are still under
development. They are due to be submitted in mid-1997 (See March 2,
1995 Mary Nichols Memorandum) and will include local emission reduction
strategies as well as the regional control strategies implemented as a
result of the Ozone Transport Assessment Group process. The EPA will
evaluate these revisions for compliance with section 110(a)(2)(D) when
they are submitted.
Section 126 of the Act states that: ``Any State or political
subdivision may petition the Administrator for a finding that any major
source or group of stationary sources emits or would emit any air
pollutant in violation of the prohibition of section 7410(a)(2)(D)(ii)
of this title or this section. Within 60 days after receipt of any
petition under this subsection and after public hearing, the
Administrator shall make such a finding or deny the petition.'' Neither
the State of Wisconsin, nor any other State, has petitioned the EPA to
make a finding under section 126 as defined above. As mentioned
earlier, the issue of transported ozone and ozone precursors is being
addressed through the regulatory aspects of the Ozone Transport
Assessment Group. The complex science of ozone formation and transport
has necessitated the initiation of a study of what types of strategies
would be effective in reducing the
[[Page 43670]]
amount of transported ozone. Unlike other criteria pollutants, the most
effective control strategy and the most culpable source(s) are not
always obvious. The work being done by the Ozone Transport Assessment
Group will provide information on what types of control strategies need
to be implemented, and over what geographic areas. Once the results are
available, EPA intends to use its authority under section 110(k)(5) to
ensure implementation of these control strategies. These regional
strategies, combined with past and future rate-of-progress reductions,
will significantly reduce the occurrence of health threatening
concentrations of ozone over all areas.
Comment: The commentor states that the ``integrity of redesignation
requirements is further eroded by USEPA's inadequate ozone transport
policy.'' The commentor further states that the Walworth County and the
Kewaunee and Sheboygan County SIPs are incomplete due the waiving of
the following requirements: section 172 (c)(2) reasonable further
progress (RFP) requirement; section 176 transportation and general
conformity requirements; section 182 (a)(4) new source review
requirement; and section 182(f) NOx requirements.
Response: The EPA rejects the contention that the SIPs are
incomplete. The EPA also rejects the contention that the redesignation
requirements of section 107(d)(3)(E) are not being fully enforced.
Section 172 (c)(2) RFP
With respect to the RFP requirement, since Walworth, Kewaunee, and
Sheboygan Counties are being designated from a nonattainment areas to
attainment based on a showing that they have already attained the
NAAQS, the requirement to detail their future progress toward
attainment is unnecessary. The General Preamble (57 FR 13498) states
that the requirements for RFP will not apply in evaluating a request
for redesignation since, at a minimum, the air quality data for the
area must show that the area has already attained the NAAQS for the
pollutant in question.
Section 182 (a)(4) New Source Review
The EPA has not waived the Part D New Source Review (NSR)
requirement for the three Wisconsin Counties. The State has submitted
NSR rules to EPA and these rules were fully approved on January 18,
1995 (60 FR 3538). The NSR rules apply only to nonattainment areas.
Once an area is redesignated to attainment, the part C--Prevention of
Significant Deterioration of Air Quality (PSD) rules apply accordingly.
Wisconsin has demonstrated that Kewaunee and Sheboygan Counties will
maintain the NAAQS for ozone with PSD rules in effect.
Section 176 General and Transportation Conformity
The EPA has not ``waived'' the requirement for adoption and
implementation of conformity regulations. Rather, EPA has determined
that those requirements will continue to apply after the area is
redesignated, and therefore need not be fulfilled as a condition of
redesignation. This national policy was exercised in the Tampa, Florida
redesignation finalized on December 7, 1995, (60 FR 62748). The State
of Wisconsin, in fact, submitted transportation and general conformity
SIP revisions on November 23, 1994 and November 30, 1994, respectively.
An EPA action proposing approval of the transportation conformity
revision was published on May 10, 1996 (61 FR 21412). The issue is
whether full approval of these rules is needed prior to redesignation.
As presented in the June 5, 1996 and June 11, 1996 proposed
rulemakings, the EPA believes that it is reasonable to interpret the
conformity requirement as not being applicable for purposes of
redesignation under section 107(d). The rationale for this is based on
a combination of two factors. First, the requirement to submit SIP
revisions to comply with the conformity provisions of the Act continue
to apply to areas after redesignation to attainment, since such areas
would be subject to a section 175A maintenance plan. Therefore, the
State remains obligated to adopt the transportation and general
conformity rules even after redesignation and would risk sanctions for
failure to do so. While a redesignation of an area to attainment
enables the area to avoid further compliance with most requirements of
section 110 and part D, since those requirements are linked to the
nonattainment status of an area, the conformity requirements apply to
both nonattainment and maintenance areas. Second, EPA's Federal
conformity rules require the performance of conformity analyses in the
absence of state-adopted rules. Therefore, a delay in adopting State
rules does not relieve an area from the obligation to implement
conformity requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment, and are required to
implement conformity under Federal rules if State rules are not yet
adopted, the EPA believes it is reasonable to view these requirements
as not being applicable requirements for purposes of evaluating a
redesignation request.
For the reasons just discussed, the EPA believes that the ozone
redesignation requests for Walworth County and for Kewaunee and
Sheboygan Counties may be approved notwithstanding the lack of fully-
approved State transportation and general conformity rules. This
redesignation policy was also exercised in the Tampa, Florida,
Cleveland-Akron-Lorain, Ohio, and Grand Rapids, Michigan ozone
redesignations finalized on December 7, 1995 (60 FR 52748), May 7, 1996
(61 FR 20458), and June 21, 1996 (61 FR 31831), respectively.
According to the Federal transportation and general conformity
rules, conformity applies to maintenance areas as well as nonattainment
areas. Once redesignated, the redesignated areas will be maintenance
areas and will be required to conduct emission analyses to determine
that the VOC and NOx emissions remain below the motor vehicle
emission budget established in the maintenance plan. The General
Preamble to the conformity regulations further clarifies this issue,
particularly as it pertains to areas requesting and obtaining a section
182(f) NOx exemption.
Section 182(f) NOx Requirement
Section 182(f) establishes NOx requirements for ozone
nonattainment areas. However, it provides that these requirements do
not apply to an area if the Administrator determines that NOx
reductions would not contribute to attainment. On July 13, 1994,
Wisconsin submitted, along with Illinois and Indiana, a section 182(f)
NOx petition to be relieved of the section 182(f) NOx
requirements based on urban airshed modeling. The modeling demonstrates
that local NOx emission reductions would not contribute to
attainment of the NAAQS for ozone in the nonattainment areas, which
includes Kewaunee and Sheboygan Counties. The EPA approved the section
182(f) petition on January 26, 1996 (61 FR 2428). Therefore, the
section 182(f) NOx requirements are no longer applicable
requirements for these areas. However, approval of the waiver does not
exempt these counties from requirements that may be imposed as a result
of the Ozone Transport Assessment Group process, as explained in the
January 26, 1996, final rulemaking.
Comment: The commentor stated that exempting ozone nonattainment
areas from compliance with part D NSR
[[Page 43671]]
regulations presents special problems since prevention of significant
deterioration (PSD) and preconstruction rules ``do not fully address
how emissions of ozone precursors should be treated to assure that
major new or modified sources do not cause or contribute to a NAAQS
violation.''
Response: The EPA emphasizes that, contrary to the commentor's
contention, ozone nonattainment areas are not exempt from compliance
with part D NSR regulations. An October 14, 1994, memorandum was issued
by Mary Nichols, Assistant Administrator for Air and Radiation, titled,
Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment (Nichols Memorandum). That memorandum
suggests that areas that are otherwise eligible for redesignation need
not have a fully approved part D NSR program as a prerequisite to
redesignation since the PSD program would apply once the area has been
redesignated to attainment. As mentioned previously, the State of
Wisconsin submitted NSR rules on November 15, 1992. These rules were
approved by EPA on January 18, 1995 (60 FR 3538). The NSR rules have
been in effect in Kewaunee and Sheboygan Counties because of their
nonattainment designation. Upon redesignation to attainment, the
requirements of the PSD program will replace the NSR requirements. (See
discussion of NSR issue in the Grand Rapids Federal Register, 60 FR
37366).
The Nichols' memorandum's statement that EPA regulations (40 CFR
51.165(b)(3) and Appendix S) ``do not fully address how ozone precursor
emissions should be treated to ensure that major new or modified
sources do not cause or contribute to an ozone NAAQS violation'' is
based on the difficulty in modeling the impact of emissions from
specific sources on ozone formation. The policy, however, also states
that for areas with preconstruction monitoring or other information
that indicate that the area is not meeting the ozone standard after
redesignation to attainment, Appendix S or 40 CFR 51.165(b) apply.
These areas should then require major new or modified sources to obtain
VOC emission offsets of at least a 1:1 ratio. In addition, the PSD
program allows Best Available Control Technology (BACT) in place of
Lowest Achievable Emission Rate (LAER) if the less stringent control
technology can be justified based on an economic, energy and
environmental impacts analysis. Consequently, if a justification for a
RACT control cannot be made on the basis of an environmental impact
analysis, the State may impose a more stringent level of control other
than what may be selected as BACT in an area redesignated to attainment
but not meeting the NAAQS. With these elements, the preconstruction
review programs can assure that major new or modified sources achieve
the statutory goals of Part D NSR.
Comment: The commentor states that the EPA should process the
November 23, 1994, and November 30, 1994 transportation and general
conformity rules submittals before finalizing action on the Wisconsin
redesignations. The commentor supports this by stating that changes in
mobile source emissions and in demographic patterns around the area are
directly related to ozone precursor emissions.
Response: The EPA agrees that surface transportation projects and
evolving demographic distributions can have an influence on an area's
ozone precursor emissions and its overall ability to demonstrate
maintenance with the ozone NAAQS. However, approval of the
redesignation requests for Walworth County and for Kewaunee and
Sheboygan Counties does not relieve the State from the requirement that
it comply with the conformity provisions of the Act, including
performing conformity analyses. The State has submitted transportation
and general conformity rules. As mentioned earlier, the transportation
SIP revision was proposed for approval on May 10, 1996, and should be
finalized soon. The State is simply adopting the Federal rules for
general conformity, and final approval of that submittal is expected
soon. Our national policy, as first exercised in the December 7, 1995,
Tampa rulemaking (60 FR 62748), does not require conformity as a
prerequisite for redesignation. The status of the State rules is not a
factor. Therefore, the EPA believes that the ozone redesignation
requests for Walworth County and for Kewaunee and Sheboygan Counties
may be approved notwithstanding the lack of fully-approved State
transportation and general conformity rules.
The following comments are specific to the proposed approval of the
redesignation request for Kewaunee, Manitowoc, and Sheboygan Counties.
Comment: The commentor protests the ``clandestine'' determination
of attainment which was applied to Kewaunee and Sheboygan Counties. The
commentor further states that this application exempted the area from
the section 182(b)(1) 15 percent requirement.
Response: The EPA's application of the determination of attainment
policy to Kewaunee and Sheboygan Counties was not ``clandestine'' but
rather was clearly explained in the portion of the proposed rulemaking
to which it was relevant (i.e., Attainment Demonstration Requirement).
The EPA made a determination in the proposed approval of the
redesignation to attainment that since these areas are demonstrating
monitored attainment of the ozone NAAQS, a factual determination based
on 3 years of complete, quality assured monitoring data, certain
provisions of the Act do not require SIP revisions to be made by the
State for so long as the area continues to attain the standard. As
explained in a May 10, 1995, memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, entitled, ``RFP,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' EPA believes it is appropriate to interpret the more
specific RFP, attainment demonstration and related provisions of
subpart 2 in the same manner as EPA had previously interpreted the
general provisions of subpart 1 of part D of Title I (sections 171 and
172).
EPA has explained at length in other notices, including the July
20, 1995 determination of attainment regarding the Grand Rapids area
(60 FR 37366), its rationale for that interpretation of the Act and
incorporates those explanations by reference here. See Approval and
Promulgation of Implementation Plans and Designation of Areas of Air
Quality Planning Purposes; Ohio, 61 FR 20458 (May 7, 1996);
Determination of Attainment of Ozone Standard for Salt Lake and Davis
Counties, Utah, 60 FR 36723 (July 18, 1995). EPA emphasizes that it has
not suspended or granted the Wisconsin moderate counties an exemption
from any applicable requirements. Rather, EPA has interpreted the
requirements of sections 182(b)(A)(I) and 172 (c)(9) as not being
applicable once an area has attained the standard, as long as it
continues to do so. This is not a waiver of requirements that by their
terms clearly apply; it is a determination that certain requirements
are written so as to be operative only if the area is not attaining the
standard.
The 1995 Seitz memorandum was clear about the consequences of the
policy for redesignations. First, it made plain that a determination of
attainment is not tantamount to a redesignation of an area to
attainment. Attainment is only one of the criteria set forth in section
107(d)(3)(E). To be redesignated, the State must satisfy all of the
criteria of section 107(d)(3)(E), including the requirement of a
demonstration that the improvement in the area's air quality is
[[Page 43672]]
due to permanent and enforceable reductions, and the requirements that
the area have a fully-approved SIP which meets all of the applicable
section 110 and part D requirements, and a fully approved maintenance
plan.
Upon the determination of attainment for Kewaunee and Sheboygan
Counties, however, the attainment demonstration requirement of section
182(b)(1)(A)(I) is no longer considered an applicable requirement under
section 107(d)(3)(E). It is no longer included among those measures
required for SIP approval.
The commentor also stated that EPA's determination of attainment,
as applied to the moderate counties, waived the 15 percent plan
requirement. In fact, a 15 percent plan for the moderate and severe
nonattainment areas in Wisconsin was submitted to EPA on November 15,
1993 and was approved on March 22, 1996. The 15 percent plan is being
implemented in the moderate counties and is not affected by EPA's
determination that the area has attained the standard.
Comment: The commentor states concern about the integrity of the
monitoring network in Kewaunee and Sheboygan Counties. The commentor
specifically states that 1994, 1995, and 1996 data show ``worrisome
gaps'' and a ``continuing problem with reliability.'' Additionally, the
commentor identifies preliminary ozone data indicating exceedances of
the ozone standard in 1996 in Manitowoc and Kewaunee Counties.
Response: The Code of Federal Regulations, Part 58, requires 75
percent data collection in order for the monitoring to be considered
complete. There are four ozone monitors in the three moderate area
counties which were proposed for redesignation to attainment. The
monitoring season in Wisconsin extends for 184 days, from April 15th to
October 15th. All of the monitors recorded valid readings on at least
96 percent of the total number of possible days. In 1995, the two
monitors in Manitowoc recorded valid readings for all 184 days of the
ozone season. The commentor did not identify specific days or monitors
in which the ``gaps'' appeared. The Sheboygan monitor was out of
service for approximately 98 hours in early July 1995. Most of the
hours were from July 7th into July 10th, which was a period of
relatively low ozone readings across the area. The monitor experienced
a pump failure during this time period. Some of the missing hours were
during July 13th and 14th which was a period of elevated ozone
concentrations. During this period, condensation in the lines, due to
extremely high humidity, caused invalid readings. However, at other
monitors in the region, the maximum ozone concentration during this
episode was recorded during the afternoon of July 12th, which is a
period when the Sheboygan monitor was collecting data. Data submitted
thus far in 1996 does not show excessive gaps in data collection and
appears to be fulfilling the data collection requirements.
The commentor also stated that preliminary exceedances (subject to
quality assurance procedures) were recorded at the Manitowoc-Woodland
Dunes monitor on June 28, 1996 and on July 6, 1996. As we have noted
above, if either of these exceedances is determined to be valid, the
Manitowoc-Woodland Dunes monitor would be in violation of the ozone
standard and, consequently, Manitowoc County would be ineligible for
redesignation to attainment. The monitor in Kewaunee County showed an
ozone value of 163 parts per billion in June of this year. Preliminary
indications from the State are that this value represents ozone from a
standard calibration procedure where the monitor was not deactivated
during the calibration test. Therefore, the hourly concentration
appears in the database but is not representative of ambient ozone
concentration levels. Even if it is a valid reading, the Kewaunee
County monitor would still not be in violation of the ozone standard
because it would only have three exceedances over the past three years,
whereas four exceedances are needed for a monitor to be in violation.
The EPA is not finalizing the request for redesignation to
attainment for Manitowoc County in this action. The counties of
Kewaunee and Sheboygan continue to demonstrate monitored attainment
with the ozone NAAQS.
Comment: The commentor expresses concern that the EPA will make the
final action approving the redesignation to attainment effective upon
the date of publication in the Federal Register. The commentor states
that it is inappropriate for the EPA to depart from the ``typical
thirty day period'' used in the past and EPA should not ``race against
the clock'' in order to avoid future monitored exceedances.
Response: The notice of final rulemaking approving the
redesignation to attainment for the counties of Sheboygan and Kewaunee
will become effective the date it is published in the Federal Register.
The thirty-day delay in the effective date is necessary when a final
rule will be imposing new requirements upon an area and the area needs
time to prepare for the imposition of those new requirements. The
redesignation to attainment for Sheboygan and Kewaunee Counties does
not impose any new requirements in those two counties but rather
relieves a restriction. Therefore, the effective date of action does
not need to be delayed. The immediate effective date for this
redesignation 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.''
Comment: The commentor states that the redesignation ignores
findings from the Lake Michigan Ozone Study which show these areas will
be unable to attain and maintain the ozone NAAQS. The commentor also
states that EPA is ignoring emissions from Wisconsin areas which may
contribute to any future violation of the standard in Kewaunee or
Sheboygan County. Additionally, the commentor states that existing
Title V requirements should be enforced.
Response: Kewaunee and Sheboygan Counties have demonstrated through
monitoring data that they have attained the NAAQS for ozone. The State
has also demonstrated that emissions in Kewaunee and Sheboygan Counties
will decrease when projected to the year 2007. These decreases,
combined with reductions occurring upwind, will assist the areas in
their effort to maintain the ozone standard.
The Lake Michigan Ozone Study (LMOS), coordinated by the Lake
Michigan Air Directors Consortium (LADCO), has submitted modeling for
use in supporting an overwhelming transport petition for Kewaunee,
Sheboygan, and Manitowoc Counties. The overwhelming transport guidance
was provided in a September 1, 1994, memorandum from Mary D. Nichols,
titled `` Ozone Attainment Dates for Areas Affected by Overwhelming
Transport.'' This analysis predicted ozone concentrations over the
four-state region surrounding Lake Michigan. The modeling, which uses
1991 meteorological conditions and 1990 emission information grown to
the year 1996, shows predicted ozone concentrations above the standard
in and around Kewaunee and Sheboygan Counties. The modeling was
submitted by the State of Wisconsin to support a petition that the
moderate nonattainment counties of Kewaunee, Sheboygan, and Manitowoc
not be bumped up to a higher classification in response to either a
monitored ambient
[[Page 43673]]
air quality violation or the lack of a demonstration showing attainment
by the year 1996. The overwhelming transport modeling was submitted to
demonstrate that high levels of predicted ozone from upwind areas
(i.e., Chicago, Milwaukee, and areas further upwind) are impacting the
three counties and that the areas would be able to attain the NAAQS but
for the overwhelming amount of transported ozone.
Kewaunee and Sheboygan Counties continue to demonstrate monitored
attainment of the ozone NAAQS. However, they are part of the LADCO
group, which is in the process of developing a final attainment
demonstration using photochemical modeling for the four-state LADCO
region. Because of LADCO's involvement in the Ozone Transport
Assessment Group effort (established pursuant to the March 2, 1995,
Mary Nichols Memorandum) and uncertainty about current and future
boundary conditions and control strategies, a final attainment
demonstration for the area has not been submitted.
Initial modeling for the area was also recently submitted to EPA in
response to the Phase I requirements of the Mary Nichols memorandum.
This modeling includes predicted ozone concentrations for 1996 and 2007
using various control strategy scenarios combined with several
assumptions of boundary ozone conditions. Some of the 2007 scenarios
show predicted maximum ozone values below 124 parts per billion, the
remainder show areas with predicted ozone values above 124 parts per
billion. The modeling documentation only indicates whether attainment
will be reached in the four-State LADCO region and does not identify
the levels of predicted ozone for Kewaunee and Sheboygan Counties.
Overall, the modeling is playing an important role in the determination
of emission controls needed to provide for attainment in and downwind
of the nonattainment areas in the Lake Michigan Ozone Study region.
The EPA believes that the ultimate test of whether an area has, in
fact, achieved attainment is demonstrated through monitoring and that
the redesignation to attainment of Kewaunee County and Sheboygan County
is appropriate given their ability to show monitored attainment of the
standard and because they have met the other redesignation criteria. An
explanation of how the monitored attainment of the ozone standard is
determined is contained in 40 Code of Federal Regulations, Part 50,
Appendix H. The clean air quality data cover the years 1993, 1994, and
1995, which rank as some of the worst years in terms of ozone forming
potential based on a 42-year record of meteorological data. The lack of
a monitored violation in these counties during this time period
supports the State's claim that the air quality has improved due to
permanent and enforceable reductions, and is in attainment with the
NAAQS. However, EPA also feels that the LADCO modeling that has been
submitted is legitimate and that it provides information that primarily
speaks to the transport of ozone and the effect of various control
strategies on future ozone formation. The elevated levels of predicted
ozone in the Kewaunee, Manitowoc, and Sheboygan County area (i.e.,
approximately 120 to 140 parts per billion) are indicative of the
transport phenomenon, which is most pronounced generally along the
western and eastern shoreline of Lake Michigan. While the modeling is
useful to evaluate control strategy effectiveness and transport, less
confidence should be placed upon the specific ozone concentrations
predicted by the model to occur in 1996 at specific locations across
the region.
There has long been an understanding that uncertainty is a part of
any ozone modeling analysis. Ozone modeling demonstrations are
primarily designed to evaluate control strategies for future
attainment. Ozone modeling is not used for, nor intended to be used
for, determining an area's current attainment status. In addition to
the uncertainties, the test for determining modeled attainment differs
substantially from the current form of the ozone NAAQS, which permits
occasional exceedances at any location. When evaluating modeling
demonstrations, it is appropriate to consider additional information,
such as air quality monitoring data, in order to characterize the
robustness of the analysis. Because of the uncertainties inherent in
the modeling process, air quality monitoring data is weighted more
heavily the closer one gets to the attainment date. For the reasons
discussed above, EPA believes that the redesignation to attainment for
these counties is appropriate given their ability to demonstrate
attainment with the ozone standard using monitored data.
As mentioned earlier, the maintenance plan for Sheboygan and
Kewaunee Counties includes a triggering mechanism which, in the event
of a monitored violation, would activate the contingency plan in the
violating county. The contingency plan includes provision for an
analysis to be performed by the State and approved by EPA to identify
if the violation was caused by local sources or if it was the result of
ozone transported from upwind areas. The contingency plan submitted by
the State does not exclude the Milwaukee area from the analysis.
However, the contingency plan only speaks to the control measures to be
implemented in the violating county if it is determined that
implementation of those measures will promptly correct the violation.
It does not call for the implementation of control measures in the
upwind areas.
The reductions required in the Milwaukee-Racine and Chicago-Gary
nonattainment areas were discussed earlier in this document. These
reductions will be combined with possible future reductions of ozone
precursor emissions from upwind sources, which will likely be
implemented as a result of the work currently being done by the Ozone
Transport Assessment Group. The EPA intends to use its regulatory
authority to ensure implementation of the recommended control
strategies coming from the Ozone Transport analysis. The reductions
resulting from these strategies will assist urban areas in their
efforts to demonstrate attainment as well as to lower the concentration
of ozone found in more rural areas, such as the three Wisconsin
counties.
The results from the Ozone Transport Assessment Group effort are to
be submitted as formal revisions to the SIPs during 1997. The State of
Wisconsin is very active in the Ozone Transport Assessment effort.
However, the State has not committed to all of the specific reductions
in volatile organic compounds as required by EPA, pending the results
of the ozone transport analysis showing which emission reduction
strategies will be effective. The EPA has issued a finding of failure
to submit to the State of Wisconsin for the required reductions.
Finally, the EPA agrees with the commentor that it is important
that all existing Title V permit requirements be enforced to ensure
that the maximum benefits are received from reductions in ozone
precursors already being relied upon.
III. Final Rulemaking Action
The EPA approves the redesignation to attainment for ozone for the
Wisconsin counties of Walworth, Kewaunee, and Sheboygan. The EPA also
approves the section 175A maintenance plans for these three counties as
revisions to the Wisconsin SIP. The State of Wisconsin has satisfied
[[Page 43674]]
all of the necessary requirements of the Act.
EPA finds that there is good cause for this redesignation to
attainment and SIP revision to become effective immediately upon
publication. A delayed effective date is unnecessary, due to the nature
of a redesignation to attainment, which relieves the area from certain
Act requirements that would otherwise apply to it. The immediate
effective date for this redesignation is authorized under both 5 U.S.C.
Sec. 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.''
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Ozone SIPs are designed to satisfy the requirements of part D of
the Act and to provide for attainment and maintenance of the ozone
NAAQS. This final redesignation should not be interpreted as
authorizing the State to delete, alter, or rescind any of the VOC or
NOX emission limitations and restrictions contained in the
approved ozone SIP. Changes to ozone SIP VOC regulations rendering them
less stringent than those contained in the EPA approved plan cannot be
made unless a revised plan for attainment and maintenance is submitted
to and approved by EPA. Unauthorized relaxations, deletions, and
changes could result in both a finding of nonimplementation [section
173(b) of the Act] and in a SIP deficiency call made pursuant to
section 110(a)(2)(H) of the Act.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D, of the
Act do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids EPA to base its actions on such grounds. Union Electric Co.
v. U.S.E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
Redesignation of an area to attainment under section 107(d)(3)(E)
of the Act does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Administrator certifies that the approval of the redesignation request
will not affect a substantial number of small entities.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 2 U.S.C. Sec. 1532, signed into law on
March 22, 1995, the EPA must prepare a budgetary impact statement to
accompany any proposed or final rulemaking that includes a Federal
mandate that may result in estimated costs to State, local, or tribal
governments in the aggregate; or to the private sector, of $100 million
or more. Under section 205, 2 U.S.C. Sec. 1535, the EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203, 2 U.S.C. Sec. 1533, requires the EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
constraining this rule and other required information to the U.S.
Senate, the U.S. House of Representative and the Comptroller General of
the General Accounting Office prior to publication of the rule in
today's Federal Register. This rule is not a ``major rule'' as defined
by 5 U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this final action must be filed in the United States Court of
Appeals for the appropriate circuit by October 25, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 Subject
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Motor vehicle pollution, Nitrogen oxides, Reporting and
recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, National parks, Nitrogen oxides, Ozone, Volatile organic
compounds, Wilderness areas.
Dated: August 7, 1996.
Valdas V. Adamkus,
Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
[[Page 43675]]
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart YY--Wisconsin
2. Section 52.2585 is amended by adding paragraph (k) to read as
follows:
Sec. 52.2585 Control strategy: Ozone.
* * * * *
(k) Approval--On December 15, 1995, and May 15, 1996, the Wisconsin
Department of Natural Resources submitted requests to redesignate
Walworth County and Sheboygan and Kewaunee Counties, respectively, from
nonattainment to attainment for ozone. The State also submitted
maintenance plans as required by section 175A of the Clean Air Act, 42
U.S.C. Sec. 7505a. Elements of the section 175A maintenance plans
include attainment emission inventories for NOx and VOC,
demonstrations of maintenance of the ozone NAAQS with projected
emission inventories to the year 2007 for NOx and VOC, plans to
verify continued attainment, and contingency plans. If a violation of
the ozone NAAQS, determined to be caused by local sources is monitored,
Wisconsin will implement one or more appropriate contingency measure(s)
contained in the contingency plan. Once a violation of the ozone NAAQS
is recorded, the State will notify EPA and review the data for quality
assurance. A plan to analyze the violation, including an analysis of
meteorological conditions, will be submitted within 60 days to EPA-
Region 5 for approval. Within 14 months of the violation, Wisconsin
will complete and public notice the analysis and submit it to EPA-
Region 5 for review. If the analysis shows that local sources caused
the violation, Wisconsin will implement the contingency measures within
24 months after the violation. The contingency measures to be
implemented in Walworth County are Stage II vapor recovery and non-
Control Technology Guideline (non-CTG) Reasonably available control
technology (RACT) limits. Contingency measures to be implemented in
either Kewaunee or Sheboygan County are lower major source
applicability thresholds for industrial sources and new gasoline
standards which will lower VOC emissions. The redesignation request and
maintenance plan meet the redesignation requirements in section
107(d)(3)(E) and 175A of the Act, respectively.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7871q.
2. In section 81.350, the ozone table is amended by revising the
entries for Kewaunee County, Sheboygan County, and Walworth County to
read as follows:
Sec. 81.350 Wisconsin.
* * * * *
Wisconsin--Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated areas ---------------------------------------------------------------------------
Date \1\ Type Date Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Kewaunee County Area Kewaunee County [Insert Date of Attainment.
...... Publication].
* * * * * * *
Sheboygan County Area Sheboygan [Insert Date of Attainment.
County ..... Publication].
Walworth County Area Walworth County [Insert Date of Attainment.
...... Publication].
* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.
[FR Doc. 96-21697 Filed 8-23-96; 8:45 am]
BILLING CODE 6560-50-P