[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].                                                            
                                                                                                                
                                                  * * * * * * *                                                 
----------------------------------------------------------------------------------------------------------------
\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