[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Rules and Regulations]
[Pages 29436-29444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11295]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2007-0957; FRL-8568-2]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Wisconsin; Redesignation of 
Kewaunee County to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On June 12, 2007, the Wisconsin Department of Natural 
Resources (WDNR) submitted a request to redesignate Kewaunee County to 
attainment of the 8-hour ozone standard. EPA proposed to approve this 
submission on December 11, 2007. EPA provided a 30-day review and 
comment period. The comment period closed on January 10, 2008. EPA 
received comments from the Sierra Club and the Door County Corporation 
Counsel. EPA is approving Wisconsin's request and the associated 
maintenance plan for continuing to attain the standard. As part of this 
action, EPA is making a determination that Kewaunee County has attained 
the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). 
This determination is based on complete, quality-assured ambient air 
quality monitoring data for the 2004-2006 ozone seasons that 
demonstrate that the 8-hour ozone NAAQS has been attained in Kewaunee 
County. Monitoring data for 2007 continue to show monitored attainment 
of the NAAQS. EPA is approving the maintenance plan for Kewaunee County 
and is redesignating Kewaunee County to attainment. Finally, EPA is 
approving, for purposes of transportation conformity, Wisconsin's 2012 
and 2018 Motor Vehicle Emission Budgets (MVEBs) for Kewaunee County.

DATES: This final rule is effective May 21, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA R05 OAR 2007-0957. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Kathleen D'Agostino, 
Environmental Engineer, at (312) 886-1767 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR 18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886 1767, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

Table of Contents

I. What is the background for this rule?
II. What comments did we receive on the proposed action?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews.

 I. What is the background for this Rule?

    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million (ppm). EPA published a final rule 
designating and classifying areas under the 1997 8-hour ozone NAAQS on 
April 30, 2004 (69 FR 23857).
    On March 12, 2008, EPA Administrator Stephen L. Johnson signed a 
rule promulgating a more

[[Page 29437]]

stringent 8-hour ozone standard of 0.075 ppm. This rule was published 
in the Federal Register on March 27, 2008 (73 FR 16436). EPA will 
designate nonattainment areas under the 2008 8-hour ozone standard in 
2010. This rule only addresses the status of Kewaunee County with 
respect to the 1997 8-hour ozone standard.
    The background for today's actions with respect to the 1997 ozone 
standard is discussed in detail in EPA's December 11, 2007, proposal 
(72 FR 70255). In that rulemaking, we noted that, under EPA regulations 
at 40 CFR part 50, the 8-hour ozone standard is attained when the 3-
year average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations is less than or equal to 0.08 ppm. (See 69 FR 
23857 (April 30, 2004) for further information). The data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90%, and no single year has less than 
75% data completeness, as determined in accordance with Appendix I of 
Part 50.
    Under the Clean Air Act (CAA), EPA may redesignate nonattainment 
areas to attainment if sufficient complete, quality-assured data are 
available to determine that the area has attained the standard and that 
it meets the other CAA redesignation requirements in section 
107(d)(3)(E).
    On June 12, 2007, the WDNR submitted a request to redesignate 
Kewaunee County to attainment of the 8-hour ozone standard. The request 
included three years of complete, quality-assured data for the period 
of 2004 through 2006, indicating the 8-hour NAAQS for ozone had been 
achieved. The December 11, 2007, proposed rule provides a detailed 
discussion of how Wisconsin met this and other CAA requirements.
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air 
Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 
04 1201, in response to several petitions for rehearing, the DC. 
Circuit clarified that the Phase 1 Rule was vacated only with regard to 
those parts of the rule that had been successfully challenged. 
Therefore, the Phase 1 Rule provisions related to classifications for 
areas currently classified under subpart 2 of Title I, part D of the 
CAA as 8-hour nonattainment areas, the 8-hour attainment dates, and the 
timing for emissions reductions needed for attainment of the 8-hour 
ozone NAAQS, remain effective. The June 8th decision left intact the 
Court's rejection of EPA's reasons for implementing the 8-hour standard 
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By 
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule 
that had not been successfully challenged. The June 8th decision 
reaffirmed the December 22, 2006, decision that EPA had improperly 
failed to retain four measures required for 1-hour nonattainment areas 
under the anti-backsliding provisions of the regulations: (1) 
Nonattainment area New Source Review (NSR) requirements based on an 
area's 1-hour nonattainment classification; (2) Section 185 penalty 
fees for 1-hour severe or extreme nonattainment areas; (3) measures to 
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, 
contingent on an area not making reasonable further progress toward 
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; 
and (4) certain transportation conformity requirements for certain 
types of federal actions. The June 8th decision clarified that the 
Court's reference to conformity requirements was limited to requiring 
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation. EPA believes that 
the Court's December 22, 2006, and June 8, 2007, decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8th decision clarified that 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires only that those 1-hour 
budgets must be used for 8-hour conformity determinations until 
replaced by 8-hour budgets. To meet this requirement, conformity 
determinations in such areas must comply with the applicable 
requirements of EPA's conformity regulations at 40 CFR part 93.

II. What Comments Did We Receive on the Proposed Action?

    EPA provided a 30-day review and comment period. The comment period 
closed on January 10, 2008. EPA received comments from Sierra Club and 
the Door County Corporation Counsel. A summary of the comments 
received, and EPA's responses, follow.
    (1) Comment: Sections 172(c)(1) and 182(b)(2) of the CAA require 
the SIP to mandate Reasonably Available Control Technology (RACT) for 
all volatile organic compound (VOC) sources within the nonattainment 
area. Wisconsin has not demonstrated that the SIP meets this 
requirement. While Wisconsin promulgated some VOC RACT rules for the 1-
hour ozone standard, the State has not reviewed them to determine 
whether they are still valid and sufficiently stringent under the 8-
hour standard.
    Response: Under EPA's longstanding interpretation of section 
107(d)(3)(E) of the CAA, to qualify for redesignation, states 
requesting redesignation to attainment must meet only the relevant SIP 
requirements that came due prior to the submittal of a complete 
redesignation request. September 4, 1992, Calcagni memorandum 
(``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division). See also Michael Shapiro Memorandum, September 
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation 
of Detroit-Ann Arbor). See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 
2004), which upheld this interpretation. See, e.g. also 68 FR 25418, 
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
    Kewaunee County was not classified under subpart 2 of the CAA and 
thus was not subject to the section 182 RACT requirement. The 
applicable part D, subpart 1, SIP requirements for Kewaunee County are 
contained in sections 172(c)(1)-(9). The commentor specifically cites 
section 172(c)(1), which requires reasonably available control measures 
(RACM). For purposes of redesignation, a state must meet all 
requirements of section 110 and part D that were applicable prior to 
submittal of the complete redesignation request. The State of Wisconsin 
submitted a complete ozone redesignation request for Kewaunee County 
prior to the deadline for submissions required under section 172(c)(1)-
(9); therefore, these submissions are not applicable requirements for 
purposes of redesignation.

[[Page 29438]]

    Moreover, where EPA determines that an area is attaining the 
standard, since the requirement for submission of an attainment 
demonstration is suspended, and RACM is a component of an attainment 
demonstration, the requirement for submission of RACM is suspended. 40 
CFR 51.918, 70 FR 71645-71646 (November 29, 2005), General Preamble 57 
FR 13498 (April 16, 1992).
    The commentor also cites section 182(b)(2) of the CAA, which 
requires RACT in areas classified as moderate or above. At the time the 
redesignation request was submitted, Kewaunee County was not classified 
under subpart 2 of the CAA and, therefore, was not subject to section 
182(b)(2), which only applies to areas classified as moderate or above 
under subpart 2 of the CAA.
    It should be noted that the Court's ruling in South Coast Air 
Quality Management Dist. v. EPA, 472 F.3d 882 vacated the portion of 
EPA's Phase 1 8-hour Ozone Implementation Rule that classified certain 
areas under Subpart 1. In response to this vacatur, EPA is in the 
process of developing a rule that will classify the areas that were 
initially classified under subpart 1. EPA believes that, since EPA has 
not yet determined these new classifications and requirements, 
redesignation can now go forward. This belief is based upon: (1) EPA's 
longstanding policy of evaluating requirements in accordance with the 
requirements due at the time the request is submitted; and, (2) 
consideration of the inequity of applying retroactively any 
requirements that might in the future be applied.
    (2) Comment: Wisconsin's Oxides of Nitrogen (NOX) RACT 
rules have not yet been approved by EPA into the Wisconsin SIP. 
Therefore, Wisconsin does not meet the requirement to have a fully 
approved SIP.
    Response: Under section 182(f) of the CAA, NOX RACT is 
required in areas classified as moderate or above under subpart 2 of 
the CAA. As discussed in greater detail above, Kewaunee County was not 
classified under subpart 2 of the CAA and thus is not subject to the 
requirements of section 182(f).
    (3) Comment: Wisconsin does not have a fully approved SIP because 
it has failed to submit the nonattainment SIP for the 8-hour ozone 
standard, which was due June 15, 2007. Unless Wisconsin has a fully 
approved nonattainment SIP in place for 8-hour ozone, the Administrator 
is prohibited from approving Wisconsin's redesignation request.
    Response: As discussed above, it is EPA's longstanding 
interpretation of section 107(d)(3)(E) of the CAA that, to qualify for 
redesignation, states requesting redesignation to attainment must meet 
only the relevant SIP requirements that came due prior to the submittal 
of a complete redesignation request. Applicable requirements of the CAA 
that come due subsequent to the state's submittal of a complete request 
remain applicable until a redesignation to attainment is approved, but 
are not required as a prerequisite to redesignation. See section 
175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). 
See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. 
Louis/East St. Louis area to attainment of the 1 hour ozone NAAQS).
    The State of Wisconsin submitted a complete ozone redesignation 
request for Kewaunee County prior to the deadline for submission of an 
attainment demonstration; therefore, an attainment demonstration is not 
an applicable requirement for purposes of redesignation. Moreover, 
where EPA determines that an area is attaining the standard, an 
attainment demonstration is not an applicable requirement for purposes 
of redesignation, since attainment has already been reached. 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' from John Calcagni, Director, Air Quality Management 
Division, to Regional Air Division Directors, September 4, 1992 and 
General Preamble 57 FR 13564 (April 16, 1992). See also 40 CFR 51.918.
    (4) Comment: Wisconsin has not submitted a SIP to control mercury. 
Therefore, Wisconsin's SIP is incomplete and EPA cannot redesignate any 
area as in attainment.
    Response: EPA promulgated the Clean Air Mercury Rule under section 
111(d) of the CAA. Therefore, the submission of a plan to control 
mercury is not required under subpart 1 as part of an ozone SIP, and is 
irrelevant to the approval of an ozone redesignation. Wisconsin has met 
all currently applicable SIP requirements for purposes of redesignation 
for Kewaunee County under Section 110 and part D of the CAA, as 
required by section 107(d)(3)(E)(v) of the CAA.
    (5) Comment: Wisconsin lacks adequate funding and personnel to 
provide a user-friendly Web site for its permits, to respond to EPA 
comments regarding Prevention of Significant Deterioration (PSD) 
permits, and maintain organized files accessible to the public. These 
shortcomings were identified by EPA as part of its review of the 
State's PSD program in 2006. Until the funding and resources issues are 
resolved, EPA may not approve the redesignation.
    Response: EPA approved Wisconsin's PSD program on May 27, 1999 (64 
FR 28745). EPA may rely on prior SIP approvals in approving a 
redesignation request. See Calcagni Memorandum, page 3, Southwestern 
Pennsylvania Growth Alliance v. Browner. 144 F. 3d 984,989-990 (6th 
Cir. 1998), Wall v. EPA, 265 F.3d 426 (6th Cir. 2001). The review to 
which the commentor refers was part of the national NSR Program 
Evaluation Project. These permit program reviews were intended to 
highlight the positive aspects of a state's air permitting program and 
to foster quality improvements in the program. In that report, EPA 
highlighted many program strengths, including ``a good modeling 
program, a good public comment process, and overall clear and well-
organized permits.'' The report goes on to find that WDNR maintains a 
Web site containing all permit actions, has consistently logged Best 
Available Control (BACT) and Lowest Achievable Emission Rate (LAER) 
determinations into the RACT/BACT/LAER/Clearinghouse, has a program for 
improving the quality and issuance of permits and works with EPA to 
ensure decisions for determinations are made based on EPA policy. In 
the report, EPA found a few areas which could be improved. EPA 
suggested that WDNR could be more prompt in sending applications for 
PSD projects, improve its permit tracking system and be more prompt in 
responding to permit comments before the final permit is issued. EPA 
did not find Wisconsin's PSD SIP to be deficient, and believes that 
Wisconsin has adequate personnel and funding to carry out its plan. 
Section 110(a)(2)(E).
    (6) Comment: Wisconsin has not specified contingency measures 
should Kewaunee County not attain the 8-hour standard in the future. 
Instead, Wisconsin proposes to ``evaluate the sufficiency of control 
measures that have already been promulgated, but not fully implemented 
at the time of violation, to return the area to attainment'' and then, 
at an unspecified future time ``determine that additional [unspecified] 
measures are necessary to return the area to attainment * * * from the 
list. * * *''
    Response: Wisconsin has included a list of potential contingency 
measures in its maintenance plan. These include: reduced VOC content in 
the Architectural, Industrial and Maintenance coatings rule and/or 
commercial and consumer products rule and/or federal vehicle toxics 
rule and broadening the application of the NOX

[[Page 29439]]

RACT program. Wisconsin has specified the triggering event as a 
violation and has committed to implement appropriate contingency 
measures within eighteen months. Thus, the state has identified a 
schedule and procedure for adoption and implementation, and a time 
limit for action by the State. Because it is not possible, however, to 
determine what control measure will be most appropriate and effective 
should a contingency measure be triggered at some point in the future, 
Wisconsin is not limited to selecting measures only from its list. If a 
contingency measure is triggered, the State can adopt a contingency 
measure from this list or choose another contingency measure which has 
been determined to be effective.
    A state can choose as its contingency measure any adopted but not 
fully implemented control measure providing that it is not included in 
the calculation of the maintenance inventory. The emissions reductions 
from these programs are real, not considered in maintenance plan 
emissions budgets, and can be achieved more quickly since the state has 
already gone through the adoption process. Wisconsin goes beyond this 
minimal requirement by committing to evaluate the sufficiency of these 
control measures to return the area to attainment. To prohibit a state 
from using any control measure adopted prior to the actual triggering 
of a contingency measure would only penalize states that are proactive 
in addressing anticipated air quality problems. EPA's approval of 
measures that have already been adopted has been upheld in the 
analogous context of section 172(c)(9) contingency measures. Louisiana 
Environmental Action Network v. EPA, 382. F.3d 575 (Fifth Cir. 2004). 
EPA concludes that there is adequate assurance that the State will 
promptly correct a violation of the NAAQs that occurs after 
redesignation. Section 175A and section 107(d)(3)(E).
    (7) Comment: Wisconsin does not have a fully approved SIP because 
it has not yet complied with the Credible Evidence Rule (62 FR 8314).
    Response: Wisconsin's SIP is consistent with the Credible Evidence 
Rule. Specifically, Wisconsin rule NR439.06 states, ``Notwithstanding 
the compliance determination methods which the owner or operator of a 
source is authorized to use under this chapter, the department may use 
any relevant information or appropriate method to determine a source's 
compliance with applicable emission limitations.'' This rule was 
approved by EPA on August 15, 1994 (59 FR 41709) with respect to VOCs, 
and on May 27, 1999 (64 FR 28745) with respect to all pollutants. 
Further, credible evidence requirements for a state are not linked with 
a particular nonattainment area's designation and classification in 
that state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classification are the relevant 
measures to evaluate in reviewing a redesignation request. The credible 
evidence SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state. 61 FR 53174-53176 (October 10, 1996), 61 FR 20458 
(May 7, 1996); 60 FR 62748 (December 7, 1995), 65 FR 37890 (June 19, 
2000), 66 FR 50399 (October 19, 2001). Section 110 elements not linked 
to the area's nonattainment status are not applicable for purposes of 
redesignation.
    (8) Comment: To qualify for redesignation, section 
107(d)(3)(E)(iii) of the CAA requires that the improvement in air 
quality be ``due to permanent and enforceable reductions in emissions * 
* *.'' Wisconsin's request for redesignation does not make this 
showing, instead, it shows a calculated reduction, which is neither 
real nor permanent and enforceable.
    Response: Wisconsin has calculated the change in emissions between 
2002, one of the years used to designate the area as nonattainment, and 
2005, one of the years Kewaunee County monitored attainment. See Tables 
3, 4 and 5 at 72 FR 70262. The reduction in emissions and the 
corresponding improvement in air quality over this time period can be 
attributed to a number of permanent and enforceable regulatory control 
measures that Kewaunee County and upwind areas have implemented in 
recent years. Kewaunee County is impacted by the transport of ozone and 
ozone precursors from upwind areas. Therefore, local controls as well 
as controls implemented in upwind areas are relevant to the improvement 
in air quality in Kewaunee County.
    Wisconsin adopted NOX controls for large existing 
sources and established emissions standards for new sources as part of 
its rate of progress plan under the 1-hour ozone standard. Reductions 
in VOC and NOX emissions have occurred statewide and in 
upwind areas as a result of federal emission control measures, with 
additional emission reductions expected to occur in the future. Federal 
emission control measures include: Maximum Achievable Control 
Technology Standards, the National Low Emission Vehicle (NLEV) program, 
Tier 2 emission standards for vehicles, gasoline sulfur limits, low 
sulfur diesel fuel standards, and heavy-duty diesel engine standards. 
On October 27, 1998 (63 FR 57356), EPA issued a NOX SIP call 
requiring the District of Columbia and 22 states to reduce emissions of 
NOX. In Michigan, Illinois, and Indiana alone, the 
NOX SIP call has been responsible for a reduction in ozone 
season NOX emissions in excess of 196,400 tons between 2000 
and 2004. The reduction in NOX emissions has resulted in 
lower concentrations of transported ozone entering Kewaunee County.
    (9) Comment: Wisconsin's redesignation request purports to show a 
decrease in actual emissions, through permanent and enforceable 
measures, between 2002 and 2005, claiming that ``Wisconsin has 
documented specific permanent and enforceable programs responsible for 
emission reductions over this time period.'' The emission reductions 
``appear to be either a result of a different metric to calculate 
emissions in 2002 versus 2005, or due to unenforceable and non-
permanent reductions.'' For example, emissions from point sources and 
nonpoint sources in Appendix 4 are calculated based on variables such 
as vehicle miles traveled, amount of fuel combusted, and county 
employment. These variables directly affect the emissions from year to 
year, but are neither permanent nor enforceable. Therefore, Wisconsin's 
submission does not demonstrate that any such decreases are due to 
permanent and enforceable reductions.
    Response: It is not necessary for every change in emissions between 
the nonattainment year and the attainment year to be permanent and 
enforceable. Rather, it is necessary for the improvement in air quality 
to be reasonably attributable to permanent and enforceable reductions 
in emissions. As discussed above, Kewaunee County and upwind areas have 
implemented a number of permanent and enforceable regulatory control 
measures which have reduced emissions and resulted in a corresponding 
improvement in air quality. Wisconsin adopted NOX controls 
for large existing sources and established emissions standards for new 
sources as part of its rate of progress plan under the 1-hour ozone 
standard. Reductions in VOC and NOX emissions have occurred 
statewide and in upwind areas as a result of federal emission control 
measures, with additional emission reductions expected to occur in the 
future. Federal emission control measures include: Maximum Achievable 
Control Technology Standards, the NLEV program, Tier 2

[[Page 29440]]

emission standards for vehicles, gasoline sulfur limits, low sulfur 
diesel fuel standards, and heavy-duty diesel engine standards. On 
October 27, 1998 (63 FR 57356), EPA issued a NOX SIP call 
requiring the District of Columbia and 22 states to reduce emissions of 
NOX. In Michigan, Illinois, and Indiana alone, the 
NOX SIP call has been responsible for a reduction in ozone 
season NOX emissions in excess of 196,400 tons between 2000 
and 2004.
    Further, Wisconsin has followed EPA guidance in development of 
inventories for 2002 and 2005. For the nonroad sector, the same version 
of the National Mobile Inventory Model (NMIM) was run for both years. 
The reduction in emissions from 2002-2005 is the result of fleet 
turnover and emissions controls, not differences in methodology. With 
respect to the onroad sector, MOBILE6.2.03 was run for both years, with 
an increase in vehicle miles traveled between 2002 and 2005. The 
reduction in emissions is due to federal motor vehicle control programs 
and fleet turnover, not differences in methodology. With respect to 
area sources, Wisconsin used appropriate emission calculation 
methodologies. While there were some minor changes in emissions factors 
or throughput for some area source categories, these were minor and did 
not greatly affect the overall inventory. Wisconsin did not claim area 
source emission reductions between 2002 and 2005. Point source 
methodology remained consistent between the 2002 and 2005 inventories. 
Point source emissions were estimated by collecting process-level 
information for each facility. Typically throughput information was 
multiplied by an emission factor for that process. Emission factor 
sources included mass balance, stack testing, continuous emissions 
monitors, engineering judgment and EPA's Factor Information Retrieval 
database.
    (10) Comment: In Appendix 4, there were different emission factors 
applied in 2002 and 2005, or a different method for calculating 
emissions was used, with 2005 emission factors or methods generally 
resulting in lower emissions than the factors or methods applied in 
2002. For example, the emission factors for fuel combustion in 2005 are 
much lower than the factors used to calculate 2002 emissions. While 
emission factors may have been updated to be more accurate, the mere 
updating of emission factors from one year to another does not result 
in lower emissions. If Wisconsin is to demonstrate that emissions 
actually decreased between 2002 and 2005, the same emission factor must 
be applied in both reference years.
    Response: Wisconsin followed EPA guidance in development of 
inventories for 2002 and 2005. For the nonroad sector, the same version 
of NMIM was run for both years. The reduction in emissions from 2002-
2005 is the result of fleet turnover and federal motor vehicle control 
programs, not differences in methodology. With respect to the onroad 
sector, MOBILE6.2.03 was run for both years, with an increase in 
vehicle miles traveled between 2002 and 2005. The reduction in 
emissions can be attributed to federal motor vehicle control programs 
and fleet turnover, not differences in methodology. Point source 
methodology also remained consistent between the 2002 and 2005 
inventories. While there were some minor changes in emissions factors 
or throughput for some area source categories, these were minor and did 
not greatly affect the overall inventory. Wisconsin did not claim area 
source emission reductions between 2002 and 2005. The emission factors 
for the area source fuel combustion category did change, as the 
commentor stated. This category is such a small portion of the entire 
inventory, however, that these tiny differences are irrelevant. In 
2005, the area source fuel combustion category represents 0.08% of the 
VOC inventory for Kewaunee County and 2.6% of the NOX 
inventory. Between 2002 and 2005, emissions from the fuel combustion 
category decreased by 0.054 tons per day for VOC and increased by 0.011 
tons per day for NOX. We do not believe that the difference 
in emissions calculation methodology in any way affects Wisconsin's 
demonstration that the improvement in air quality in Kewaunee County 
was due to a permanent and enforceable reduction in emissions.
    (11) Comment: One of the most significant sources of ozone-causing 
pollution is fossil fueled electricity generation. The WDNR calculates 
NOX emission reductions for these units based on a 
comparison of historical actual emissions. Actual emissions in 2005 are 
not the enforceable emission rates and do not represent a permanent and 
enforceable reduction. Because the sources could have emitted 
significantly more in 2005, and could in the future, these facilities' 
actual emissions cannot be used to show a permanent and enforceable 
reduction between 2002 and 2005. The failure to rely on enforceable 
emission rates is unlawful and arbitrary.
    Response: There are no fossil fueled electricity generation units 
in Kewaunee County. Therefore, emissions from these facilities were not 
included or considered as part of the maintenance plan inventory for 
Kewaunee County. It should be noted, however, that the NOX 
SIP call issued by EPA on October 27, 1998, required the District of 
Columbia and 22 states to reduce emissions of NOX. In 
Michigan, Illinois, and Indiana alone, the NOX SIP call has 
been responsible for a reduction in ozone season NOX 
emissions in excess of 196,400 tons between 2000 and 2004. These 
emission reductions are primarily in the fossil fueled electricity 
generation sector. This reduction in NOX emissions has 
resulted in a reduction of ozone and ozone precursors being transported 
into Kewaunee County.
    (12) Comment: EPA has not adopted Wisconsin's RACT rules for 
electric generating units into the Wisconsin SIP. Nevertheless 
Wisconsin's redesignation submission assumes that RACT rules for 
NOX are in place in the future as part of the demonstration 
that the purported historical improvement in ozone concentrations is 
due to enforceable reductions in emissions. This reliance on future 
regulations as a basis for a historical improvement in air quality is 
unlawful and arbitrary. Even if future reductions in emissions could be 
used to make the demonstration under section 107(d)(3)(E)(iii), 
Wisconsin's reliance on RACT rules is unlawful and arbitrary because 
the RACT rules are not final.
    Response: Wisconsin has adopted NOX RACT rules which are 
currently under review by EPA. These rules apply to the Milwaukee-
Racine and Sheboygan nonattainment areas and will result in future 
upwind reductions in emissions. While Wisconsin included these rules in 
the discussion of permanent and enforceable control measures, WDNR did 
not, in fact, take credit for these projected NOX RACT 
reductions in demonstrating a permanent and enforceable reduction in 
emissions between the years 2002 and 2005 and EPA is not relying on 
them as a basis for finding that this criterion for redesignation has 
been met.
    (13) Comment: Section 175A(d) of the CAA requires that the 
maintenance plan ``include a requirement that the State will implement 
all measures with respect to the control of the air pollutant concerned 
which were contained in the State implementation plan for the area 
before designation of the area as an attainment area.'' Such measures 
include the New Source Review (NSR) program. These measures, contained 
in Wisconsin Administrative Code NR 408, are not included in the 
maintenance plan being proposed by the Department. As EPA has 
explained, ``the State will be expected to maintain its implemented 
control strategy despite

[[Page 29441]]

redesignation to attainment, unless such measures are shown to be 
unnecessary for maintenance or are replaced with measures that achieve 
equivalent reductions.'' However, upon redesignation, Kewaunee County 
sources would no longer be subject to rule NR 408, effectively removing 
sources from the control strategy. This is unlawful and redesignation 
cannot be approved unless and until rule NR 408 is redrafted such that 
it continues to apply in Kewaunee County after redesignation.
    Response: As clearly stated in EPA's October 14, 1994, policy 
memorandum from Mary D. Nichols entitled ``Part D New Source Review 
(part D NSR) Requirements for Areas Requesting Redesignation to 
Attainment,'' ``EPA believes it is reasonable to interpret ``measure,'' 
as used in section 175A(d), not to include part D NSR.'' Congress used 
the undefined term ``measure'' differently in different provisions of 
the Act, which indicates that the term is susceptible to more than one 
interpretation and that EPA has the discretion to interpret it in a 
reasonable manner in the context of section 175A. See Greenbaum v. 
United States EPA, 370 F. 3d 527, 535-38 (6th Cir. 2004). (Court finds 
persuasive EPA's argument that the very nature of the NSR permit 
program supports its interpretation that it is not intended to be a 
contingency measure pursuant to section 175A(d).) It is reasonable to 
interpret ``measure'' to exclude part D NSR in this context because 
PSD, a program that is the corollary of part D NSR for attainment 
areas, goes into effect in lieu of part D NSR upon redesignation. PSD 
requires that new sources demonstrate that their construction will not 
increase ambient concentrations significantly and will not result in 
concentrations above the air quality standard. The State has 
demonstrated that the area will be able to maintain the standard 
without Part D NSR in effect, and the State's PSD program will become 
effective in the area upon redesignation to attainment. See the 
rationale set forth at length in the Nichols Memorandum. See also the 
discussions of why full approval and retention of NSR is not required 
in redesignation actions in the following redesignation rulemakings: 60 
FR 12459, 12467-12468 (March 7, 1995) (Redesignation of Detroit, MI); 
61 FR 20458, 20469-20470 (May 7, 1996) levels (Cleveland-Akron-Lorrain, 
OH); 66 FR 53665, 53669 (October 23, 2001) (Louisville, KY); 61 FR 
31831, 31836-31837 (June 21, 1996) (Grand Rapids, MI).
    (14) Comment: The United States Court of Appeals for the District 
of Columbia held in South Coast Air Quality Management District v. 
Environmental Protection Agency, that controls established in an area 
under the 1-hour ozone standard, including NSR requirements, must 
remain in place pursuant to the anti-backsliding provision of section 
172(e) of the CAA. The court held that anything ``designed to constrain 
ozone levels is a `control' pursuant to the anti-backsliding provisions 
in section 172(e), and cannot be relaxed even when an area is 
reclassified as a lower nonattainment designation.'' The existing 
nonattainment NSR program in effect for Kewaunee County Wisconsin is a 
``control'' which cannot be relaxed. The redesignation would result in 
the nonattainment NSR provisions no longer applying to Kewaunee County 
sources. This is an unlawful relaxation of ``controls'' established in 
nonattainment areas of Wisconsin. This violates the anti-backsliding 
provision in section 172(e). EPA cannot approve the redesignation until 
Rule NR 408 is revised to ensure that it continues to apply to sources 
in Kewaunee County, which was designated as nonattainment for 1-hour 
ozone under the 1990 Amendments to the CAA.
    Response: The Kewaunee County area is an attainment area subject to 
a CAA section 175A maintenance plan under the 1-hour standard. The 
anti-backsliding issues before the DC Circuit concerned whether an area 
designated nonattainment could rely on a less stringent nonattainment 
NSR program for the 8-hour standard instead of the more stringent 
program that had applied to the nonattainment area based on its 1-hour 
nonattainment classification. The issue before the court did not 
concern whether an area designated attainment is required to implement 
a nonattainment NSR review program. Sections 161 and 172(b) of the CAA 
make clear that areas not designated nonattainment are subject to the 
PSD program, not the NSR program that applies in nonattainment areas.
    (15) Comment: EPA rules explicitly require maintenance 
demonstrations to be supported by modeling (40 CFR 51.112 and 65 FR 
6711). Until Wisconsin conducts such a modeling demonstration, EPA 
cannot approve the maintenance plan.
    Response: A maintenance demonstration need not be based on 
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. 
EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 
(October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003). 40 CFR 
51.112 provides in relevant part that ``[e]ach plan must demonstrate 
that the measures, rules and regulations contained in it are adequate 
to provide for the timely attainment and maintenance of the national 
standard that it implements.'' Both the language and the context of 
this regulation indicate that it applies to attainment demonstrations, 
and not to stand-alone maintenance plans submitted under CAA section 
175A. There is no reference in the regulation to modeling requirements 
applicable to a section 175A plan revision for the sole purpose of 
providing maintenance and not attainment. EPA policy and longstanding 
practice allows States to demonstrate maintenance by preparing an 
attainment emissions inventory corresponding to the period during which 
the area monitored attainment, and to project maintenance by showing 
that future emissions are projected to remain below this level for the 
next ten years. See Calcagni memo. Holding emissions at or below the 
level of attainment is adequate to reasonably assure continued 
maintenance of the standard. See 65 FR 37879, 37888 (June 19, 2000). 
Moreover, since EPA has determined that the area is in actual 
attainment of the 8-hour ozone standard, the requirement for submission 
of an attainment demonstration is no longer applicable. 40 CFR 51.918. 
Furthermore, regional modeling performed by the Lake Michigan Air 
Directors Consortium to support attainment planning efforts for the 
states of Wisconsin, Illinois, Indiana, Michigan and Ohio shows 
continued attainment of the NAAQS in Kewaunee County in 2009, 2012 and 
2018. See ``Regional Air Quality Analyses for Ozone, PM2.5, and 
Regional Haze: Final Technical Support Document,'' dated April 25, 
2008.
    (16) Comment: Because NR 408 would not apply to Kewaunee County 
after redesignation, the proposal to redesignate Kewaunee County is 
effectively a proposal to remove the NSR provisions. This violates 
section 110(l) of the CAA which states that ``the administrator may not 
approve a revision of a plan if the revision would interfere with any 
reasonable applicable requirement concerning attainment and reasonable 
further progress * * * or any other applicable requirement of this 
chapter.'' Increasing the major source threshold, lowering the control 
technology requirements, and removing the offset requirements all will 
result in increased air pollution and interfere with both attainment 
and reasonable further progress.
    Response: Section 110(l) provides that the Administrator shall not 
approve a SIP revision ``if the revision would

[[Page 29442]]

interfere with any applicable requirement concerning attainment and 
reasonable further progress (as defined in section 171), or any other 
applicable requirement of this Act.'' Kewaunee County is monitoring 
attainment of the NAAQS and, thus, there is no need for ``reasonable 
further progress'' toward attainment. Furthermore, Wisconsin is not 
revising the applicability or terms of its NSR program. It is true that 
certain requirements of the Clean Air Act and the Wisconsin SIP (such 
as NSR) do not apply in attainment areas. However, EPA does not believe 
that fact means that a decision to redesignate an area as attainment is 
``interfering'' with attainment or with requirements that apply only to 
nonattainment areas. For the reasons set forth above and in the 
proposal, EPA believes that Wisconsin's maintenance plan is adequate to 
maintain attainment for at least 10 years, and therefore concludes that 
this action will not interfere with attainment or reasonable further 
progress, or any other applicable CAA requirement.
    (17) Comment: The commentor states that he does not oppose the 
Kewaunee County redesignation, but makes the following points. Upwind 
sources of ozone and its precursors cause or contribute significantly 
to downwind (e.g. Door County) non-compliance with NAAQS. Local and 
long-range transport of ozone and its precursors have and will continue 
to preclude downwind attainment of the NAAQS. The overarching goal is 
to reduce emissions so that the NAAQS are universally met. Reducing 
emissions upwind is the only means to decrease concentrations downwind. 
The commentor suggests that rather than focusing on redesignation, EPA 
should find the upwind sources that cause or contribute significantly 
to downwind non-compliance with ozone standards, regulate emissions 
from upwind regions to address the issue of transport and allow 
downwind areas a fair opportunity to achieve compliance, and place a 
moratorium on upwind sources being deemed to have attained the NAAQS if 
impacted downwind areas continue to show monitored nonattainment of the 
NAAQS.
    Response: This rule is a redesignation action that is designed to 
determine whether an area has met the requirements for redesignation to 
attainment. Considerations of how to address issues of transport from 
upwind areas are not related to the current redesignation action. As 
noted in the proposal, section 110(a)(2)(D) of the CAA, which requires 
that SIPs contain certain measures to prevent sources in a state from 
significantly contributing to air quality problems in another state, 
continues to apply to the state regardless of the attainment 
designation of an area. The requirements of section 110(a)(2)(D) are 
not linked with a particular nonattainment area's designation and 
classification in that state. Therefore, these requirements are not 
applicable for purposes of redesignation. See 65 FR 37890 (June 19, 
2000), 66 FR 50399 (October 19, 2001) and 68 FR 25418, 25426-25427 (May 
12, 2003).
    That being said, however, EPA has long recognized that ozone 
transport is a problem affecting many portions of the eastern United 
States. The Lake Michigan region both receives high levels of 
transported ozone and ozone precursors from upwind source areas and 
contributes to the high levels of ozone and ozone precursors affecting 
downwind receptor areas. Downwind shoreline areas around Lake Michigan 
are affected by both regional transport of ozone and subregional 
transport from major urban areas in the Lake Michigan region.
    Considerable progress has been made in reducing transported 
pollution. EPA promulgated and States have implemented the 
NOX SIP call, which has significantly reduced NOX 
emissions throughout the eastern half of the United States. In 
Michigan, Illinois, and Indiana alone, the NOX SIP call has 
been responsible for a reduction in ozone season NOX 
emissions in excess of 196,400 tons between 2000 and 2004. Other 
federal measures including the NLEV program, Tier 2 emission standards 
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, 
and heavy-duty diesel engine standards continue to be implemented and 
will result in reductions in upwind emissions. In addition, EPA 
finalized the Clean Air Interstate Rule (CAIR) on May 12, 2005. CAIR is 
designed to achieve large reductions of Sulfur Dioxide (SO2) and/or 
NOX emissions across 28 eastern states and the District of 
Columbia and specifically addresses the transported pollution from 
upwind states that affects downwind air quality problems. (Illinois, 
Indiana, Wisconsin and Michigan are all subject to CAIR.) SO2 and 
NOX contribute to the formation of fine particles and 
NOX contributes to the formation of ground-level ozone.

III. What Action Is EPA Taking?

    EPA is taking several related actions for Kewaunee County. First, 
EPA is making a determination that Kewaunee County has attained the 
1997 8-hour ozone NAAQS. EPA is also determining that Kewaunee County 
has met the requirements for redesignation under section 107(d)(3)(E) 
of the CAA, and EPA is, therefore, approving the State's request to 
change the legal designation of Kewaunee County from nonattainment to 
attainment of the 8-hour ozone NAAQS. Further, EPA is approving as 
meeting the requirements of CAA section 175A Wisconsin's maintenance 
plan SIP revision for Kewaunee County (such approval being one of the 
CAA criteria for redesignation to attainment status. Section 
107(d)(3)(E)(iv)). Finally, for Kewaunee County, EPA is approving the 
2012 MVEBs of 0.43 tpd of VOC and 0.80 tpd of NOX and 2018 
MVEBs of 0.32 tpd of VOC and 0.47 tpd of NOX.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for these actions to become effective immediately upon publication. 
This is because a delayed effective date is unnecessary due to the 
nature of a redesignation to attainment, which relieves the area from 
certain CAA requirements that would otherwise apply to it. The 
immediate effective date for this action is authorized under both 5 
U.S.C. 553(d)(1), which provides that rulemaking actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction,'' and section 
553(d)(3) which allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' The purpose of the 30-day waiting period 
prescribed in section 553(d) is to give affected parties a reasonable 
time to adjust their behavior and prepare before the final rule takes 
effect. Today's rule, however, does not create any new regulatory 
requirements such that affected parties would need time to prepare 
before the rule takes effect. Rather, today's rule relieves the State 
of planning requirements for this 8-hour ozone nonattainment area. For 
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these 
actions to become effective on the date of publication of these 
actions.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely affects the status of a geographical 
area and

[[Page 29443]]

approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 21, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen oxides, Ozone, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
Wilderness areas.

    Dated: May 12, 2008.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
40 CFR Parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart YY--Wisconsin

0
2. Section 52.2585 is amended by adding paragraph (u) to read as 
follows:


Sec.  52.2585  Control strategy: Ozone.

* * * * *
    (u) Approval--On June 12, 2007, Wisconsin submitted a request to 
redesignate Kewaunee County to attainment of the 8-hour ozone standard. 
As part of the redesignation request, the State submitted an ozone 
maintenance plan as required by section 175A of the Clean Air Act. Part 
of the section 175A maintenance plan includes a contingency plan. The 
ozone maintenance plan establishes 2012 motor vehicle emissions budgets 
for Kewaunee County of 0.43 tons per day of volatile organic compounds 
(VOC) and 0.80 tons per day of nitrogen oxIdes (NOX) and 
2018 motor vehicle emissions budgets for Kewaunee County of 0.32 tons 
per day of VOCs and 0.47 tons per day of NOX.

PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
4. Section 81.350 is amended by revising the entry for Kewaunee County, 
WI: Kewaunee County in the table entitled ``Wisconsin--Ozone (8-Hour 
Standard)'' to read as follows:


Sec.  81.350  Wisconsin.

* * * * *

[[Page 29444]]



                                       Wisconsin--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
                                            Designation \a\                          Classification
         Designated area         -------------------------------------------------------------------------------
                                     Date \1\             Type               Date \1\                Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Kewaunee County, WI:
    Kewaunee County.                     5/21/08  Attainment.........
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

[FR Doc. E8-11295 Filed 5-20-08; 8:45 am]
BILLING CODE 6560-50-P