[Federal Register Volume 79, Number 32 (Tuesday, February 18, 2014)]
[Proposed Rules]
[Pages 9134-9152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03314]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 81

[EPA-R05-OAR-2012-0464; FRL-9906-41-Region-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Redesignation of the Milwaukee-Racine 2006 24-Hour Fine 
Particle Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On June 8, 2012, the State of Wisconsin, through the Wisconsin 
Department of Natural Resources (WDNR) submitted a request for the 
Environmental Protection Agency (EPA) to redesignate the Milwaukee-
Racine fine particle (PM2.5) nonattainment area 
(``Milwaukee-Racine Area'' or ``Area'') to attainment for the 2006 24-
hour PM2.5 National Ambient Air Quality Standard (NAAQS), 
and to approve a state implementation plan (SIP) revision containing a 
maintenance plan for the Area. The Milwaukee-Racine Area is comprised 
of Milwaukee, Racine and Waukesha Counties. EPA is proposing to grant 
the state's request to redesignate the Area to attainment for the 2006 
24-hour PM2.5 NAAQS. EPA's proposed approval involves 
several additional related actions. EPA is proposing to approve the 
state's plan for maintaining the 2006 24-hour PM2.5 NAAQS 
through 2025. EPA is proposing to approve the ammonia, volatile organic 
compounds (VOC), nitrogen oxides (NOX), direct 
PM2.5, and sulfur dioxide (SO2) inventories 
submitted by the state as meeting the comprehensive emissions inventory 
requirement of the Clean Air Act (CAA). Finally, EPA finds adequate and 
is proposing to approve Wisconsin's NOX, direct 
PM2.5, SO2, and VOC motor vehicle emission 
budgets (MVEBs) for 2020 and 2025 for the Milwaukee Area. EPA is also 
addressing a number of additional issues, including the effects of two 
decisions of the United States Court of Appeals for the District of 
Columbia (D.C. Circuit or Court): The Court's August 21, 2012, decision 
to vacate and remand to EPA the Cross-State Air Pollution Rule (CSAPR); 
and the Court's January 4, 2013, decision to remand two final rules 
implementing the 1997 annual PM2.5 standard.

DATES: Comments must be received on or before March 20, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2012-0464, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (312) 408-2279.
    4. Mail: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2012-0464. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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 Gilberto Alvarez, Environmental 
Scientist, at

[[Page 9135]]

(312) 886-6143 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Gilberto Alvarez, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6143, 
[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:

I. What should I consider as I prepare my comments for EPA?
II. What is the background for the proposal?
III. What are the criteria for redesignation to attainment?
IV. What is EPA's analysis of the state's request?
    A. Attainment Determination and Redesignation
    1. The Area Has Attained the 2006 24 PM2.5 NAAQS. 
(Section 107(d)(3)(E)(i))
    2. The Area Has Met All Applicable Requirements Under Section 
110 and part D; and the Area Has a Fully Approved SIP Under Section 
110(k) of the CAA. (Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
    3. The Improvement in Air Quality Is Due to Permanent and 
Enforceable Reductions in Emissions Resulting from Implementation of 
the SIP and Applicable Federal Air Pollution Control Regulations and 
Other Permanent and Enforceable Reductions. (Section 
107(d)(3)(E)(iii))
    4. The Area Has a Fully Approved Maintenance Plan Pursuant to 
Section 175A of the CAA. (Section 107(d)(3)(E)(iv))
    B. Ammonia and VOC Comprehensive Emissions Inventories
    C. Wisconsin's MVEBs
    1. How are MVEBs Developed?
    2. What are the MVEBs for the Milwaukee-Racine area?
V. Summary of Proposed Actions
VI. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background for the proposal?

    Fine particulate pollution can be emitted directly from a source 
(direct PM2.5) or formed secondarily through chemical 
reactions in the atmosphere involving precursor pollutants emitted from 
a variety of sources. Sulfates are a type of secondary particulate 
formed from SO2 emissions from power plants and industrial 
facilities. Nitrates, another common type of secondary particulate, are 
formed from combustion emissions of NOX from power plants, 
mobile sources and other combustion sources.
    The first air quality standards for PM2.5 were 
promulgated on July 18, 1997, at 62 FR 38652. EPA promulgated an annual 
standard at a level of 15 micrograms per cubic meter ([mu]g/m\3\) of 
ambient air, based on a three-year average of annual mean 
PM2.5 concentrations at each monitoring site. In the same 
rulemaking, EPA promulgated a 24-hour PM2.5 standard at 65 
[mu]g/m\3\, based on a three-year average of the 98th percentile of 24-
hour PM2.5 concentrations at each monitoring site.
    On October 17, 2006, at 71 FR 61144, EPA retained the annual 
PM2.5 standard at 15 [mu]g/m\3\ (2006 annual 
PM2.5 standard), but revised the 24-hour standard to 35 
[mu]g/m\3\, based again on the three-year average of the 98th 
percentile of 24-hour PM2.5 concentrations at each monitor.
    On November 13, 2009, at 74 FR 58688, EPA published air quality 
area designations for the 2006 24-hour PM2.5 standard. In 
that rulemaking, EPA designated the Milwaukee-Racine Area as 
nonattainment for the 2006 24-hour PM2.5 standard and 
defined the area to include Milwaukee, Racine and Kenosha Counties.
    In response to legal challenges of the 2006 annual PM2.5 
standard, the D.C. Circuit remanded this standard to EPA for further 
consideration. See American Farm Bureau Federation and National Pork 
Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). On 
December 14, 2012, EPA finalized a rule revising the PM2.5 
annual standard to 12 [mu]g/m\3\ based on current scientific evidence 
regarding the protection of public health. EPA is not addressing the 
2012 annual PM2.5 standard in this proposal.
    On April 24, 2012, and December 28, 2012, EPA proposed and 
reproposed, respectively, to determine that the Area was in attainment 
for the 2006 24-hour PM2.5 NAAQS (77 FR 24436 and 77 FR 
76427), based on certified ambient monitoring data for the 2008-2010 
monitoring period.
    On June 8, 2012, the Wisconsin Department of Natural Resources 
(WDNR), submitted a request for EPA to redesignate the Milwaukee-Racine 
Area to attainment for the 2006 24-hour PM2.5 NAAQS, and for 
EPA approval of the SIP revision containing an emissions inventory and 
a maintenance plan for the area.
    On May 30, 2013, WDNR submitted ammonia and VOC emissions 
inventories to supplement previously submitted emissions inventories.
    In this proposed redesignation, EPA takes into account two 
decisions of the D.C. Circuit. In the first of the two Court decisions, 
the D.C. Circuit, on August 21, 2012, in EME Homer City Generation, 
L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), vacated and remanded CSAPR 
and ordered EPA to continue administering the Clean Air Interstate Rule 
(CAIR) ``pending . . . development of a valid replacement.'' EME Homer 
City at 38. The D.C. Circuit denied all petitions for rehearing on 
January 24, 2013. In the second decision, on January 4, 2013, in 
Natural Resources Defense Council v. EPA, the D.C. Circuit remanded to 
EPA the ``Final Clean Air Fine Particle Implementation Rule'' (72 FR 
20586, April 25, 2007) and the ``Implementation of the New Source 
Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers 
(PM2.5)'' final rule (73 FR 28321, May 16, 2008), 706 F.3d 
428 (D.C. Cir. 2013).

III. What are the criteria for redesignation to attainment?

    The CAA sets forth the requirements for redesignating a 
nonattainment area to attainment. Specifically, section 107(d)(3)(E) of 
the CAA allows for redesignation provided that: (1) The Administrator 
determines that the area has attained the applicable NAAQS based on 
current air quality data; (2) the Administrator has fully approved an 
applicable SIP for the area under section 110(k) of the CAA; (3) the 
Administrator determines that the improvement in air quality is due to 
permanent and

[[Page 9136]]

enforceable emission reductions resulting from implementation of the 
applicable SIP, Federal air pollution control regulations and other 
permanent and enforceable emission reductions; (4) the Administrator 
has fully approved a maintenance plan for the area meeting the 
requirements of section 175A of the CAA; and (5) the state containing 
the area has met all requirements applicable to the area for purposes 
of redesignation under section 110 and part D of the CAA.

IV. What is EPA's analysis of the state's request?

A. Attainment Determination and Redesignation

    As noted above, on April 24, 2012, at 77 FR 24436, EPA proposed to 
determine that the Milwaukee-Racine Area attained the 2006 24-hour 
PM2.5 standard by the applicable attainment date. EPA is 
here updating and elaborating upon that proposal. We received comments 
and we are updating the information, based on those comments, within 
this proposed redesignation. EPA is proposing to determine that the 
area continues to attain the 2006 24-hour PM2.5 standard 
with certified 2010-2012 monitoring data. EPA is also proposing to 
approve Wisconsin's maintenance plan for the area and to determine that 
the area has met all other applicable redesignation criteria under CAA 
section 107(d)(3)(E). The basis for EPA's proposed approval of the 
redesignation request is as follows:
1. The Area Has Attained the 2006 24-Hour PM2.5 NAAQS. 
(Section 107(d)(3)(E)(i))
    In this action EPA is proposing to redesignate the Milwaukee-Racine 
Area as having attained the 2006 24-hour PM2.5 NAAQS based 
on quality-assured, certified data for the 2010-2012 monitoring period. 
Data available for 2013 indicate that the area continues to attain the 
standard. EPA's determination that an area has attained the 2006 24-
hour PM2.5 NAAQS is made in accordance with 40 CFR 50.13 and 
part 50, appendix N, based on three consecutive calendar years of 
complete quality-assured air quality monitoring data. For an area to 
attain the 2006 24-hour PM2.5 standard, the three-year 
average of the 98th percentile 24-hour concentrations must not exceed 
35 [mu]g/m\3\ at all relevant monitoring sites in the subject area. 
Under 40 CFR part 50, appendix N 4.2(a), a year of 24-Hour 
PM2.5 data meets completeness requirements when at least 75 
percent of the scheduled sampling days for each quarter have valid 
data. Section 4.2(b) provides further that ``The use of less than 
complete data is subject to the approval of EPA which may consider 
factors such as monitoring site closures/moves, monitoring diligence, 
and nearby concentrations in determining whether to use such data for 
comparisons to the NAAQS.''
    The state's redesignation request for the Milwaukee-Racine area 
includes monitoring data for the 2008-2010 time period. In addition, 
certified monitoring data are also now available for the 2009-2011, 
2010-2012 and 2013 time periods. In addition, on January 23, 2013, WDNR 
submitted draft 2013 data for the area. Table 1, below, provides a 
summary of the PM2.5 24-hour air quality monitoring data for 
the years 2008-2012. Table 2, below, provides the design values for the 
2008-2010, 2009-2011 and 2010-2012 (through mid-November) time periods. 
Exceedances in the Milwaukee area generally occur in the first quarter 
of the year, so that the data that are available for 2013 are likely to 
be a good indication of air quality for the full year.

       Table 1--98th Percentile 24-Hour PM2.5 Concentrations for the Milwaukee-Racine Area ([micro]g/m\3\)
----------------------------------------------------------------------------------------------------------------
                                                        98th Percentile 24-hour concentrations
           Site name                Monitor    -----------------------------------------------------------------
                                                   2008       2009       2010       2011       2012       2013
----------------------------------------------------------------------------------------------------------------
Milw-DNR SERHQ................       550790026       27.5       39.0       32.6       21.3       24.6       19.0
Waukesha......................       551330027       29.9       32.0       35.9       25.3       20.9       23.6
Milw-16th CHC.................       550790010       27.3       39.1       30.9       27.0       30.4       23.7
Milw-FAA/College Ave..........       550790058         **      *26.5      *35.3      *25.4       27.3       19.2
Virginia Street...............       550790043       27.4       41.7         **         **         **         **
Wells Street..................       550790099       29.0       40.3         **         **       30.2       19.7
----------------------------------------------------------------------------------------------------------------
2013 data are complete through mid-November.
* Indicates incomplete data.
** Indicates no data due to monitor not operating.


        Table 2--2006 24-Hour PM2.5 Standard Design Values for the Milwaukee-Racine Area ([micro]g/m\3\)
----------------------------------------------------------------------------------------------------------------
                    Site name                         Monitor        2008-2010       2009-2011       2010-2012
----------------------------------------------------------------------------------------------------------------
Milw-DNR SERHQ..................................       550790026              33              31              26
Waukesha........................................       551330027              33              31              27
Milw-16th CHC...................................       550790010              32              32              29
Milw-FAA/College Ave............................       550790058             *31             *29             *29
Virginia Street.................................       550790043         **35/34             ***             ***
Wells Street....................................       550790099         **35/34             ***             ***
----------------------------------------------------------------------------------------------------------------
* Indicates invalid three-year averages due to missing data.
** First value is computed from an incomplete set of monitoring data; second value also considers imputed
  values.
*** No averages calculated because data were missing from one or more years.

    The data in Tables 1 and 2 show that all relevant PM2.5 
monitors in the Milwaukee-Racine Area have recorded PM2.5 
concentrations attaining the 2006 24-hour PM2.5 NAAQS during 
the 2008-2010, 2009-2011, 2010-2012 and 2013 time periods (no violation 
of the 2006 24-hour PM2.5 NAAQS has been recorded at any 
monitoring site). As demonstrated in Table 1, the data for 2013 through 
mid-November continue to support a final determination of attainment of 
the 24-hour PM2.5 NAAQS for the Milwaukee area. However, 
because the area experienced data completeness issues due to the 
shutdown of two monitors (Virginia Street, 550790043 and Wells Street,

[[Page 9137]]

5507900099, respectively) in 2010, EPA has evaluated whether the data 
may still be used, pursuant to the provisions of 50 CFR Appendix N 
section 4.2(b). EPA conducted an analysis of the data, deriving the 
concentrations that might have been expected at the shutdown monitoring 
sites during the shutdown period, based on observed concentrations at 
nearby sites, as explained below.
    Aside from Virginia and Wells monitors, EPA notes that the design 
value for the College Avenue monitor in table 2 is based on incomplete 
data. However, this is not the design value monitor (i.e., it is not 
the monitor that had the highest value at the time of designation) for 
the area and a comparison of the values from the remaining monitors 
within the nonattainment area indicate that those values are reflective 
of values that one would expect at College Avenue, which are all below 
the 2006 24-hour PM2.5 NAAQS. As shown in Table 1, the data 
continue to show a decline in concentrations.
    On April 24, 2012, and December 28, 2012, EPA proposed and 
reproposed, respectively, to determine that the area was in attainment 
(77 FR 24436 and 77 FR 76427), based on certified ambient monitoring 
data for the 2008-2010 monitoring period. EPA is here updating and 
elaborating upon that proposal. We received comments and we are 
updating the information, based on those comments, within this proposed 
redesignation.
    EPA received two comments from one commenter, Midwest Environmental 
Defense Center, on our April 24, 2012, proposed rule. The first comment 
objected to the EPA's use of a statistical analysis to impute a design 
value for the Wells Street monitor (Site Number 550790099), which did 
not record data during 2010 and 2011, and which had previously recorded 
data showing nonattainment. The commenter contended that EPA erred in 
substituting a design value for this monitor and that EPA's analysis 
does not establish a direct correlation between the shut down monitors 
and a nearby operating monitor. On December 14, 2011, EPA requested the 
restart of the Wells Street monitor (Site Number 55079099). The monitor 
restarted operation on January 1, 2012, and it has been recording data 
since that time. The state was diligent in restarting the monitor in 
consultation with EPA. Data available to date for this monitor site 
through 2013 are consistent with continued attainment. Data for all 
four quarters of 2012 is complete and 2013 data has 3 complete 
quarters.
    EPA relied on the data imputation technique because two of the 
monitors were shut down (Site Numbers 550790043 and 550790099) and did 
not record data during 2010. As discussed in the proposal, EPA relied 
on this statistical analysis technique because * * * ``In situations 
like those in Milwaukee, where there are missing or incomplete data due 
to monitor shutdown or other factors, EPA believes that it is often 
appropriate to use historical data along with statistical techniques to 
impute missing data, use those imputed data to estimate the three-year 
design value that would likely have occurred if complete data had been 
obtained, and thereby determine if the monitor in question would likely 
have met the NAAQS.'' (77 FR 24436)
    The commenter stated that we incorrectly implied ``. . . that the 
compared monitors recorded similar data, when in truth, there is not a 
direct correlation between the data.'' EPA disagrees that there is not 
enough correlation between the shut down monitor site and the 
comparison monitor site. In fact, all four monitoring sites in the 
nonattainment area correlate very well with the replaced monitor. 
Wisconsin has provided EPA with an analysis comparing the correlations 
between the shut down monitor to the other four monitors within the 
nonattainment area, using data from January 1, 2012, through April 9, 
2012, when all monitors collected data. The correlations from that 
analysis are summarized in Table 3.
    EPA understands that the publicly available data we relied upon for 
our imputation is technically listed as ``invalid'', due to the 
shutdown of several monitors, resulting in incomplete data. However, 
section 4.2(b) provides that ``The use of less than complete data is 
subject to the approval of EPA which may consider factors such as 
monitoring site closures/moves, monitoring diligence, and nearby 
concentrations in determining whether to use such data for comparisons 
to the NAAQS.
    Therefore, based upon our statistical analysis, for the purposes of 
this redesignation, we believe all the monitors are meeting the 2006 
24-hour PM2.5 NAAQS. In addition, Wisconsin restarted one of 
the shutdown monitors, and data from 2012 and the available data from 
2013 for this site show concentrations well below the standard, and 
these data show that concentrations at the site continue to be well 
correlated with concentrations at the other monitoring site from which 
EPA estimated imputed values for 2010. Other data available to date 
from 2013 and included in Table 1 are also consistent with continued 
attainment.

                     Table 3--Correlations Analysis
------------------------------------------------------------------------
                                                   Site      Correlation
                   Site name                      number       factor
------------------------------------------------------------------------
Milw-DNR SERHQ................................   550790026         0.997
Waukesha......................................   551330027         0.919
Milw-16th CHC.................................   550790010         0.992
Milw-FAA/College Ave..........................   550790058         0.997
------------------------------------------------------------------------

    Moreover, in order to account for the uncertainty inherent within 
the analysis, EPA used another statistical technique to account for the 
variability in the data from the original site as well as the data from 
the correlated comparison monitors. The statistical analysis, known as 
``bootstrapping'' was developed by the Office of Air Quality Planning 
and Standards to aid in predicting annual PM2.5 design 
values in areas which did not meet specific data completeness 
requirements. A more detailed description of the bootstrapping analysis 
can be found within the technical support document to our April 24, 
2012, notice proposing approval of a determination of attainment (77 FR 
24436). In summary, a series of mathematical equations using 
observations yields linear regression to relate the concentrations from 
the shutdown sites to a base site containing 2010 data.
    The results of that analysis provided EPA with further evidence to 
support a final determination of attainment of the 24-hour 
PM2.5 NAAQS for the Milwaukee area.
    EPA's use of these data analysis techniques to address incomplete 
data in making attainment determinations for the PM2.5 NAAQS 
is well established. See 75 FR 45076 (August 2, 2010) (New York-NJ-CT 
1997 annual PM2.5 NAAQS) and 76 FR 27290 (May 11, 2011) 
Huntington-Ashland (OH, WV, KY) 1997 annual PM2.5 NAAQS.
    Therefore, pursuant to 50 CFR Appendix N, section 4.2(b), EPA is 
expressly approving the use of less than complete data after 
considering relevant factors. These include site closures and moves, 
monitoring diligence, nearby concentrations and monitor correlations, 
as well as additional complete data acquired in 2012 and 2013 that show 
continued attainment in the area.

[[Page 9138]]

2. The Area Has Met All Applicable Requirements Under Section 110 and 
Part D; and the Area Has a Fully Approved SIP Under Section 110(k). 
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
    We have determined that Wisconsin's SIP meets all applicable SIP 
requirements for purposes of redesignation for the Milwaukee-Racine 
Area under section 110 of the CAA (general SIP requirements) and all 
SIP requirements currently applicable for purposes of redesignation 
under part D of title I of the CAA, in accordance with section 
107(d)(3)(E)(v). In addition, with the exception of the emissions 
inventory under section 172(c)(3), we have approved all applicable 
requirements of the Wisconsin SIP for purposes of redesignation, in 
accordance with section 107(d)(3)(E)(ii). As discussed below, in this 
action EPA is proposing to approve Wisconsin's 2006 and 2010 emissions 
inventories as meeting the section 172(c)(3) comprehensive emissions 
inventory requirement.
    In making these determinations, we have ascertained which SIP 
requirements are applicable to the area for purposes of redesignation, 
and have determined that there are SIP measures meeting those 
requirements and that they are fully approved under section 110(k) of 
the CAA.
a. The Milwaukee-Racine Area Has Met All Applicable Requirements for 
Purposes of Redesignation Under Section 110 and Part D of the CAA
i. Section 110 General SIP Requirements
    Section 110(a) of title I of the CAA contains the general 
requirements for a SIP. Section 110(a)(2) provides that the 
implementation plan submitted by a state must have been adopted by the 
state after reasonable public notice and hearing, and, among other 
things, must: (1) Include enforceable emission limitations and other 
control measures, means or techniques necessary to meet the 
requirements of the CAA; (2) provide for establishment and operation of 
appropriate devices, methods, systems, and procedures necessary to 
monitor ambient air quality; (3) provide for implementation of a source 
permit program to regulate the modification and construction of any 
stationary source within the areas covered by the plan; (4) include 
provisions for the implementation of part C, Prevention of Significant 
Deterioration (PSD) and part D, New Source Review (NSR) permit 
programs; (5) include criteria for stationary source emission control 
measures, monitoring, and reporting; (6) include provisions for air 
quality modeling; and (7) provide for public and local agency 
participation in planning and emission control rule development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain measures 
to prevent sources in a state from significantly contributing to air 
quality problems in another state. EPA holds that the requirements 
linked with a particular nonattainment area's designation are the 
relevant measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state. Thus, we conclude that these requirements should not 
be construed to be applicable requirements for purposes of 
redesignation.
    Further, the other section 110 elements described above that are 
not connected with nonattainment plan submissions and not linked with 
an area's attainment status are also not applicable requirements for 
purposes of redesignation. A state remains subject to these 
requirements after an area is redesignated to attainment. Only the 
section 110 and part D requirements that are linked with a particular 
area's designation are the relevant measures that we may consider in 
evaluating a redesignation request. This approach is consistent with 
EPA's existing policy on applicability of conformity and oxygenated 
fuels requirements for redesignation purposes, as well as with section 
184 ozone transport requirements. See Reading, Pennsylvania, proposed 
and final rulemakings (61 FR 53174-53176, October 10, 1996) and (62 FR 
24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 
FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 
62748, December 7, 1995). See also the discussion on this issue in the 
Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890, June 19, 
2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation 
(66 FR 50399, October 19, 2001).
    We have reviewed the Wisconsin SIP and have concluded that it meets 
the general SIP requirements under section 110 of the CAA to the extent 
these requirements are applicable for purposes of redesignation. EPA 
has previously approved provisions of Wisconsin's SIP addressing 
section 110 requirements, including provisions addressing particulate 
matter, at 40 CFR 52.1870. On January 24, 2011, and June 29, 2012, 
Wisconsin submitted ``infrastructure SIP'' elements required by section 
110(a)(2) of the CAA. EPA approved elements of Wisconsin's submittals 
on October 29, 2012, at 77 FR 65478. The requirements of section 
110(a)(2), however, are statewide requirements that are not linked to 
the PM2.5 nonattainment status of the Milwaukee-Racine Area. 
Therefore, EPA believes that these SIP requirements are not applicable 
for purposes of review of the state's PM2.5 redesignation 
requests.
ii. Part D Requirements
    EPA is proposing to determine that, upon approval of the 
comprehensive emissions inventories discussed in section IV.B. of this 
rulemaking, the Wisconsin SIP will meet the applicable SIP requirements 
for the Milwaukee-Racine Area applicable for purposes of redesignation 
under part D of the CAA. Subpart 1 of part D, found in sections 172-176 
of the CAA, sets forth the basic nonattainment requirements applicable 
to all nonattainment areas. Subpart 4 of part D, found in sections 185-
190 of the CAA, provides more specific requirements for particulate 
matter nonattainment areas.
(1) Subpart 1
(a) Section 172 Requirements
    For purposes of evaluating these redesignation requests, the 
applicable section 172 SIP requirements for the Milwaukee-Racine Area 
are contained in sections 172(c)(1)-(9) of the CAA. A thorough 
discussion of the requirements contained in section 172 can be found in 
the General Preamble for Implementation of Title I (57 FR 13498, April 
16, 1992).
    Section 172(c)(1) requires the plans for all nonattainment areas to 
provide for the implementation of all Reasonably Available Control 
Measures (RACM) as expeditiously as practicable and to provide for 
attainment of the primary NAAQS (health-based NAAQS). EPA interprets 
this requirement to impose a duty on all nonattainment areas to 
consider all available control measures and to adopt and implement such 
measures as are reasonably available for implementation in each area as 
components of the area's attainment demonstration. Because attainment 
has been reached in the Milwaukee-Racine Area, no additional measures 
are needed to provide for attainment, and section 172(c)(1) 
requirements are no longer considered to be applicable as long as the 
area continues to attain the standard until redesignation is finalized. 
See 40 CFR 51.1004(c).
    The Reasonable Further Progress (RFP) requirement under section 
172(c)(2) is defined as progress that

[[Page 9139]]

must be made toward attainment. This requirement is not relevant for 
purposes of redesignation because the Milwaukee-Racine Area is 
monitoring attainment of the 2006 24-hour PM2.5 NAAQS. Id. 
The requirement to submit the section 172(c)(9) contingency measures is 
similarly not applicable for purposes of redesignation. Id.
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate, and current inventory of actual emissions. 
Wisconsin submitted 2006 emissions inventories for direct 
PM2.5, NOX, SO2 and VOC along with its 
redesignation request and supplemented the inventories with 2007 
ammonia emissions on May 30, 2013. As discussed below in section IV.B., 
EPA is proposing to approve the emission inventories submitted by 
Wisconsin as meeting the section 172(c)(3) emissions inventory 
requirement for the Milwaukee-Racine Area.
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources in an 
area, and section 172(c)(5) requires source permits for the 
construction and operation of new and modified major stationary sources 
anywhere in the nonattainment area. EPA approved Wisconsin's current 
NSR program on January 18, 1995 (60 FR 3538). Nonetheless, since PSD 
requirements will apply after redesignation, the area need not have a 
fully-approved NSR program for purposes of redesignation, provided that 
the area demonstrates maintenance of the NAAQS without part D NSR. A 
detailed rationale for this view is described in a memorandum from Mary 
Nichols, Assistant Administrator for Air and Radiation, dated October 
14, 1994, entitled, ``Part D New Source Review Requirements for Areas 
Requesting Redesignation to Attainment'' (Nichols memorandum). 
Wisconsin has demonstrated that the Milwaukee-Racine Area will be able 
to maintain the standard without part D NSR in effect; therefore, the 
state need not have a fully approved part D NSR program prior to 
approval of the redesignation request. The state's PSD program will 
become effective in the Milwaukee-Racine Area upon redesignation to 
attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, 
May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and 
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached, no additional measures are needed to provide for 
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted above, we find that the 
Wisconsin SIP meets the section 110(a)(2) requirements applicable for 
purposes of redesignation.
(b) Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally-supported or funded activities, 
including highway projects, conform to the air quality planning goals 
in the applicable SIPs. The requirement to determine conformity applies 
to transportation plans, programs, and projects developed, funded, or 
approved under title 23 of the U.S. Code and the Federal Transit Act 
(transportation conformity) as well as to all other Federally-supported 
or funded projects (general conformity).
    Section 176(c) of the CAA was amended by provisions contained in 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU), which was signed into law on August 10, 
2005, (Public Law 109-59). Among the changes Congress made to this 
section of the CAA were streamlined requirements for state 
transportation conformity SIPs. State transportation conformity 
regulations must be consistent with Federal conformity regulations and 
address three specific requirements related to consultation, 
enforcement and enforceability.
    EPA interprets the conformity SIP requirements as not applying for 
purposes of evaluating the redesignation request under section 107(d) 
because the requirement to submit SIP revisions to comply with the 
conformity provisions of the CAA continues to apply to areas after 
redesignation to attainment, since such areas would be subject to a 
section 175A maintenance plan. Therefore, because areas are subject to 
the conformity requirements regardless of whether they are redesignated 
to attainment, it is reasonable to view these requirements as not 
applying for purposes of evaluating a redesignation request. See Wall 
v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. 
See also 60 FR 62748, 62749-62750 (Dec. 7, 1995) (Tampa, Florida). EPA 
approved Wisconsin's general and transportation conformity SIPs on July 
29, 1996, (61 FR 39329) and August 27, 1996, (61 FR 43970), 
respectively. Wisconsin is in the process of updating its approved 
transportation conformity SIP, and EPA will review its provisions when 
they are submitted.
    Wisconsin has submitted onroad MVEBs for the Milwaukee-Racine Area 
of 2.33 tons per winter day \1\ (tpwd) and 2.16 tpwd direct 
PM2.5 and 32.62 tpwd and 28.69 tpwd NOX for the 
years 2020 and 2025, respectively. The area must use the MVEBs from the 
maintenance plan in any conformity determination that is made on or 
after the effective date of the adequacy finding and maintenance plan 
approval.
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    \1\ Wisconsin's nonattainment violations occurred for 24-hour 
average time periods. Therefore, it was necessary to construct 
emissions inventories for a time period that is most associated with 
elevated levels of 24-hour PM2.5 concentrations. A 
Wisconsin-specific study identified the meteorological winter months 
of December, January, January and February as having both the 
highest monthly average PM2.5 concentrations and the 
highest monthly percentage of site-days with 24-hour concentrations 
greater than 30 [micro]g/m\3\. Accordingly, Wisconsin designed and 
constructed emission inventories for this PM2.5 
redesignation request to focus on pollution-related activity levels 
during the winter months (more specifically--for an average January 
weekday). Thus, emissions inventory values are referenced as tons 
per winter day (tpwd).
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(2) Effect of the January 4, 2013, D.C. Circuit Decision Regarding 
PM2.5 Implementation Under Subpart 4
(a) Background
    As discussed above, on January 4, 2013, in Natural Resources 
Defense Council v. EPA, the D.C. Circuit remanded to EPA the ``Final 
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25, 
2007) and the ``Implementation of the New Source Review (NSR) Program 
for Particulate Matter Less than 2.5 Micrometers (PM2.5)'' 
final rule (73 FR 28321, May 16, 2008) (collectively, ``1997 
PM2.5 Implementation Rule''). 706 F.3d 428 (D.C. Cir. 2013). 
The Court found that EPA erred in implementing the 1997 annual 
PM2.5 NAAQS pursuant to the general implementation 
provisions of subpart 1 of part D of title I of the CAA, rather than 
the particulate-matter-specific provisions of subpart 4 of part D of 
title I.
    Although the Court's ruling did not directly address the 2006 24-
hour PM2.5 standard, EPA is taking into account the Court's 
position on subpart 4 and the 1997 annual PM2.5 standard in 
evaluating redesignations for the 2006 standard.
(b) Proposal on This Issue
    EPA is proposing to determine that the Court's January 4, 2013, 
decision does not prevent EPA from

[[Page 9140]]

redesignating the Milwaukee-Racine Area to attainment. Even in light of 
the Court's decision, redesignation for this area is appropriate under 
the CAA and EPA's longstanding interpretations of the CAA's provisions 
regarding redesignation. EPA's longstanding interpretation of the 
redesignation provisions of the CAA hold that requirements that are 
imposed, or that become due, after a complete redesignation request is 
submitted for an area that is attaining the standard, are not 
applicable for purposes of evaluating a redesignation request. Even if 
EPA applies the subpart 4 requirements to the Milwaukee-Racine 
redesignation request and disregards the provisions of its 1997 
PM2.5 implementation rule recently remanded by the Court, 
the state's request for redesignation of this area still qualifies for 
approval. EPA's discussion takes into account the effect of the Court's 
ruling on the area's maintenance plan, which EPA views as approvable 
when subpart 4 requirements are considered.
(i) Applicable Requirements for Purposes of Evaluating the 
Redesignation Request
    With respect to the 1997 PM2.5 Implementation Rule and 
the voluntary remand of the 2006 PM2.5 implementation rule, 
the Court's January 4, 2013, ruling rejected EPA's reasons for 
implementing the PM2.5 NAAQS solely in accordance with the 
provisions of subpart 1, and remanded that matter to EPA, so that it 
could address implementation of the 1997 PM2.5 NAAQS and 
2006 PM2.5 NAAQS under subpart 4 of part D of the CAA, in 
addition to subpart 1. For the purposes of evaluating Wisconsin's 
redesignation request for the area, to the extent that implementation 
under subpart 4 would impose additional requirements for areas 
designated nonattainment, EPA believes that those requirements are not 
``applicable'' for the purposes of CAA section 107(d)(3)(E), and, thus, 
EPA is not required to consider subpart 4 requirements with respect to 
the Milwaukee-Racine redesignation. Under its longstanding 
interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to 
mean, as a threshold matter, that the part D provisions which are 
``applicable'' and which must be approved in order for EPA to 
redesignate an area include only those which came due prior to a 
state's submittal of a complete redesignation request. See ``Procedures 
for Processing Requests to Redesignate Areas to Attainment,'' 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, September 4, 1992, (Calcagni memorandum). See also ``State 
Implementation Plan (SIP) Requirements for Areas Submitting Requests 
for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) 
National Ambient Air Quality Standards (NAAQS) on or after November 15, 
1992,'' Memorandum from Michael Shapiro, Acting Assistant 
Administrator, Air and Radiation, September 17, 1993, (Shapiro 
memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 
12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, 
(68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 
537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking 
applying this interpretation and expressly rejecting Sierra Club's view 
that the meaning of ``applicable'' under the statute is ``whatever 
should have been in the plan at the time of attainment rather than 
whatever actually was in the plan and already implemented or due at the 
time of attainment'').\2\ In this case, at the time that Wisconsin 
submitted its redesignation request, requirements under subpart 4 were 
not due, and indeed, were not yet known to apply, as the state's 
submittal was prior to the D.C. Circuit's decision.
---------------------------------------------------------------------------

    \2\ Applicable requirements of the CAA that come due subsequent 
to the area's submittal of a complete redesignation request remain 
applicable until a redesignation is approved, but are not required 
as a prerequisite to redesignation. Section 175A(c) of the CAA.
---------------------------------------------------------------------------

    EPA's view that, for purposes of evaluating the Milwaukee-Racine 
redesignation, the subpart 4 requirements were not due at the time the 
state submitted the redesignation request is in keeping with the EPA's 
interpretation of subpart 2 requirements for subpart 1 ozone areas 
redesignated subsequent to the D.C. Circuit's decision in South Coast 
Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South 
Coast, the Court found that EPA was not permitted to implement the 1997 
8-hour ozone standard solely under subpart 1, and held that EPA was 
required under the statute to implement the standard under the ozone-
specific requirements of subpart 2 as well. Subsequent to the South 
Coast decision, in evaluating and acting upon redesignation requests 
for the 1997 8-hour ozone standard that were submitted to EPA for areas 
under subpart 1, EPA applied its longstanding interpretation of the CAA 
that ``applicable requirements'', for purposes of evaluating a 
redesignation, are those that had been due at the time the 
redesignation request was submitted. See, e.g., Proposed Redesignation 
of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 
22050, April 27, 2010). In those actions, EPA therefore did not 
consider subpart 2 requirements to be ``applicable'' for the purposes 
of evaluating whether the area should be redesignated under section 
107(d)(3)(E).
    EPA's interpretation derives from the provisions of CAA Section 
107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be 
redesignated, a state must meet ``all requirements `applicable' to the 
area under section 110 and part D''. Section 107(d)(3)(E)(ii) provides 
that the EPA must have fully approved the ``applicable'' SIP for the 
area seeking redesignation. These two sections read together support 
EPA's interpretation of ``applicable'' as only those requirements that 
came due prior to submission of a complete redesignation request. 
First, holding states to an ongoing obligation to adopt new CAA 
requirements that arose after the state submitted its redesignation 
request, in order to be redesignated, would make it problematic or 
impossible for EPA to act on redesignation requests in accordance with 
the 18 month deadline Congress set for EPA action in section 
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a 
continuing flow of requirements with no reasonable limitation, states, 
after submitting a redesignation request, would be forced continuously 
to make additional SIP submissions that in turn would require EPA to 
undertake further notice-and-comment rulemaking actions to act on those 
submissions. This would create a regime of unceasing rulemaking that 
would delay action on the redesignation request beyond the 18 month 
timeframe provided by the CAA for this purpose.
    Second, a fundamental premise for redesignating a nonattainment 
area to attainment is that the area has attained the relevant NAAQS due 
to emission reductions from existing controls. Thus, an area for which 
a redesignation request has been submitted would have already attained 
the NAAQS as a result of satisfying statutory requirements that came 
due prior to the submission of the request. Absent a showing that 
unadopted and unimplemented requirements are necessary for future 
maintenance, it is reasonable to view the requirements applicable for 
purposes of evaluating the redesignation request as including only 
those SIP requirements that have already come due. These are the 
requirements that led to attainment of the NAAQS. To require, for 
redesignation approval, that a state also satisfy additional SIP 
requirements

[[Page 9141]]

coming due after the state submits its complete redesignation request, 
and while EPA is reviewing it, would compel the state to do more than 
is necessary to attain the NAAQS, without a showing that the additional 
requirements are necessary for maintenance.
    In the context of this redesignation, the timing and nature of the 
Court's January 4, 2013, decision in NRDC v. EPA compound the 
consequences of imposing requirements that come due after the 
redesignation request is submitted. The state submitted its 
redesignation request on June 8, 2012, but the Court did not issue its 
decision remanding EPA's 1997 PM2.5 implementation rule and 
the voluntary remand of the 2006 PM2.5 implementation rule 
concerning the applicability of the provisions of subpart 4 until 
January 2013.
    To require the state's fully-completed and pending redesignation 
request to comply now with requirements of subpart 4 that the Court 
announced only in its January, 2013, decision on the 1997 
PM2.5 Implementation rule, would be to give retroactive 
effect to such requirements when the state had no notice that it was 
required to meet them. The D.C. Circuit recognized the inequity of this 
type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C. 
Cir. 2002),\3\ where it upheld the District Court's ruling refusing to 
make retroactive EPA's determination that the St. Louis area did not 
meet its attainment deadline. In that case, petitioners urged the Court 
to make EPA's nonattainment determination effective as of the date that 
the statute required, rather than the later date on which EPA actually 
made the determination. The Court rejected this view, stating that 
applying it ``would likely impose large costs on states, which would 
face fines and suits for not implementing air pollution prevention 
plans . . . even though they were not on notice at the time.'' Id. at 
68. Similarly, it would be unreasonable to penalize Wisconsin by 
rejecting its redesignation request for an area that is already 
attaining the 2006 24-hour PM2.5 standard and that met all 
applicable requirements known to be in effect at the time of the 
request. For EPA now to reject the redesignation request solely because 
the state did not expressly address subpart 4 requirements of which it 
had no notice, would inflict the same unfairness condemned by the Court 
in Sierra Club v. Whitman.
---------------------------------------------------------------------------

    \3\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit decision that addressed retroactivity in a quite 
different context, where, unlike the situation here, EPA sought to 
give its regulations retroactive effect. National Petrochemical and 
Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing 
denied 643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571 
(2011).
---------------------------------------------------------------------------

(ii) Subpart 4 Requirements and Wisconsin's Redesignation Request
    Even if EPA were to take the view that the Court's January 4, 2013, 
decision requires that, in the context of a pending redesignation for 
the 2006 PM2.5 standard, subpart 4 requirements were due and 
in effect at the time the state submitted its redesignation request, 
EPA finds that the Milwaukee-Racine Area still qualifies for 
redesignation to attainment. As explained below, EPA believes that the 
redesignation request for the Milwaukee-Racine Area, though not 
expressed in terms of subpart 4 requirements, substantively meets the 
requirements of that subpart for purposes of redesignating the area to 
attainment.
    With respect to evaluating the relevant substantive requirements of 
subpart 4 for purposes of redesignating the Milwaukee-Racine Area, EPA 
notes that subpart 4 incorporates components of subpart 1 of part D, 
which contains general air quality planning requirements for areas 
designated as nonattainment. See Section 172(c). Subpart 4 itself 
contains specific planning and scheduling requirements for 
PM10 \4\ nonattainment areas, and, under the Court's January 
4, 2013, decision in NRDC v. EPA, these same statutory requirements 
also apply for PM2.5 nonattainment areas. EPA has 
longstanding general guidance that interprets the 1990 amendments to 
the CAA, making recommendations to states for meeting the statutory 
requirements for SIPs for nonattainment areas. See, ``State 
Implementation Plans; General Preamble for the Implementation of title 
I of the Clear Air Act Amendments of 1990,'' 57 FR 13498 (April 16, 
1992) (the ``General Preamble''). In the General Preamble, EPA 
discussed the relationship of subpart 1 and subpart 4 SIP requirements, 
and pointed out that subpart 1 requirements were to an extent 
``subsumed by, or integrally related to, the more specific PM-10 
requirements.'' 57 FR 13538 (April 16, 1992). The subpart 1 
requirements include, among other things, provisions for attainment 
demonstrations, RACM, RFP, emissions inventories, and contingency 
measures.
---------------------------------------------------------------------------

    \4\ PM10 refers to particulates nominally 10 
micrometers in diameter or smaller.
---------------------------------------------------------------------------

    For the purposes of this redesignation, in order to identify any 
additional requirements that would apply under subpart 4, we are 
considering the Milwaukee-Racine Area to be a ``moderate'' 
PM2.5 nonattainment area. Under section 188 of the CAA, all 
areas designated nonattainment under subpart 4 would initially be 
classified by operation of law as ``moderate'' nonattainment areas, and 
would remain moderate nonattainment areas unless and until EPA 
reclassifies the areas as ``serious'' nonattainment areas. Accordingly, 
EPA believes that it is appropriate to limit the evaluation of the 
potential impact of subpart 4 requirements to those that would be 
applicable to moderate nonattainment areas. Sections 189(a) and (c) of 
subpart 4 apply to moderate nonattainment areas and include the 
following: (1) An approved permit program for construction of new and 
modified major stationary sources (section 189(a)(1)(A)); (2) an 
attainment demonstration (section 189(a)(1)(B)); (3) provisions for 
RACM (section 189(a)(1)(C)); and (4) quantitative milestones 
demonstrating RFP toward attainment by the applicable attainment date 
(section 189(c)).
    The permit requirements of subpart 4, as contained in section 
189(a)(1)(A), refer to and apply the subpart 1 permit provisions 
requirements of sections 172 and 173 to PM10, without adding 
to them. Consequently, EPA believes that section 189(a)(1)(A) does not 
itself impose for redesignation purposes any additional requirements 
for moderate areas beyond those contained in subpart 1.\5\ In any 
event, in the context of redesignation, EPA has long relied on the 
interpretation that a fully approved nonattainment new source review 
program is not considered an applicable requirement for redesignation, 
provided the area can maintain the standard with a PSD program after 
redesignation. A detailed rationale for this view is described in the 
Nichols memorandum. See also rulemakings for Detroit, Michigan (60 FR 
12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 
20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 
23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 
1996).
---------------------------------------------------------------------------

    \5\ The potential effect of section 189(e) on section 
189(a)(1)(A) for purposes of evaluating this redesignation is 
discussed below.
---------------------------------------------------------------------------

    With respect to the specific attainment planning requirements under 
subpart 4,\6\ when EPA evaluates a redesignation request under either 
subpart 1 and/or 4, any area that is attaining the PM2.5 
standard is viewed

[[Page 9142]]

as having satisfied the attainment planning requirements for these 
subparts. For redesignations, EPA has consistently interpreted 
attainment-linked requirements as not applicable for areas attaining 
the standard. In the General Preamble, EPA stated that:
---------------------------------------------------------------------------

    \6\ I.e., attainment demonstration, RFP, RACM, milestone 
requirements, contingency measures.

    The requirements for RFP will not apply in evaluating a request 
for redesignation to attainment since, at a minimum, the air quality 
data for the area must show that the area has already attained. 
Showing that the state will make RFP towards attainment will, 
---------------------------------------------------------------------------
therefore, have no meaning at that point.

``General Preamble for the Interpretation of Title I of the Clean 
Air Act Amendments of 1990''; (57 FR 13498, 13564, April 16, 1992).
    The General Preamble also explained that:

[t]he section 172(c)(9) requirements are directed at ensuring RFP 
and attainment by the applicable date. These requirements no longer 
apply when an area has attained the standard and is eligible for 
redesignation. Furthermore, section 175A for maintenance plans . . . 
provides specific requirements for contingency measures that 
effectively supersede the requirements of section 172(c)(9) for 
these areas.

Id.
    EPA similarly stated in its 1992 Calcagni memorandum that, ``The 
requirements for reasonable further progress and other measures needed 
for attainment will not apply for redesignations because they only have 
meaning for areas not attaining the standard.''
    It is evident that even if we were to consider the Court's January 
4, 2013, decision in NRDC v. EPA to mean that attainment-related 
requirements specific to subpart 4 should be imposed retroactively \7\ 
and thus are now past due, those requirements do not apply to an area 
that is attaining the 2006 24-hour PM2.5 standard, for the 
purpose of evaluating a pending request to redesignate the area to 
attainment. EPA has consistently enunciated this interpretation of 
applicable requirements under section 107(d)(3)(E) since the General 
Preamble was published more than twenty years ago. Courts have 
recognized the scope of EPA's authority to interpret ``applicable 
requirements'' in the redesignation context. See Sierra Club v. EPA, 
375 F.3d 537 (7th Cir. 2004).
---------------------------------------------------------------------------

    \7\ As EPA has explained above, we do not believe that the 
Court's January 4, 2013 decision should be interpreted so as to 
impose these requirements on the states retroactively. Sierra Club 
v. Whitman, supra.
---------------------------------------------------------------------------

    Moreover, even outside the context of redesignations, EPA has 
viewed the obligation to submit attainment-related SIP planning 
requirements of subpart 4 as inapplicable for areas that EPA determines 
are attaining the standard. EPA's prior ``Clean Data Policy'' 
rulemakings for the PM10 NAAQS, also governed by the 
requirements of subpart 4, explain EPA's reasoning. They describe the 
effects of a determination of attainment on the attainment-related SIP 
planning requirements of subpart 4. See ``Determination of Attainment 
for Coso Junction Nonattainment Area,'' (75 FR 27944, May 19, 2010). 
See also Coso Junction proposed PM10 redesignation, (75 FR 
36023, 36027, June 24, 2010); Proposed and Final Determinations of 
Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55, 
July 19, 2006; and 71 FR 63641, 63643-47 October 30, 2006). In short, 
EPA in this context has also long concluded that to require states to 
meet superfluous SIP planning requirements is not necessary and not 
required by the CAA, so long as those areas continue to attain the 
relevant NAAQS.
    Elsewhere in this notice, EPA proposes to determine that the area 
has attained the 2006 24-hour PM2.5 standard, because that 
the area meets the attainment-related plan requirements of subparts 1 
and 4.
    Thus, EPA is proposing to conclude that the requirements to submit 
an attainment demonstration under 189(a)(1)(B), a RACM determination 
under section 172(c)(1) and section 189(a)(1)(c), a RFP demonstration 
under 189(c)(1), and contingency measure requirements under section 
172(c)(9) are satisfied for purposes of evaluating the redesignation 
request.
(iii) Subpart 4 and Control of PM2.5 Precursors
    The D.C. Circuit in NRDC v. EPA remanded to EPA the two rules at 
issue in the case with instructions to EPA to re-promulgate them 
consistent with the requirements of subpart 4. EPA, in this section 
addresses the Court's opinion with respect to PM2.5 
precursors. While past implementation of subpart 4 for PM10 
has allowed for control of PM10 precursors such as 
NOX from major stationary, mobile, and area sources in order 
to attain the standard as expeditiously as practicable, CAA section 
189(e) specifically provides that control requirements for major 
stationary sources of direct PM10 shall also apply to 
PM10 precursors from those sources, except where EPA 
determines that major stationary sources of such precursors ``do not 
contribute significantly to PM10 levels which exceed the 
standard in the area.''
    EPA's 1997 PM2.5 implementation rule, remanded by the 
D.C. Circuit, contained rebuttable presumptions concerning certain 
PM2.5 precursors applicable to attainment plans and control 
measures related to those plans. Specifically, in 40 CFR 51.1002, EPA 
provided, among other things, that a state was ``not required to 
address VOC [and ammonia] as . . . PM2.5 attainment plan 
precursor[s] and to evaluate sources of VOC [and ammonia] emissions in 
the state for control measures.'' EPA intended these to be rebuttable 
presumptions. EPA established these presumptions at the time because of 
uncertainties regarding the emission inventories for these pollutants 
and the effectiveness of specific control measures in various regions 
of the country in reducing PM2.5 concentrations. EPA also 
left open the possibility for such regulation of VOC and ammonia in 
specific areas where that was necessary.
    The Court in its January 4, 2013, decision made reference to both 
section 189(e) and 40 CFR 51.1002, and stated that, ``In light of our 
disposition, we need not address the petitioners' challenge to the 
presumptions in [40 CFR 51.1002] that volatile organic compounds and 
ammonia are not PM2.5 precursors, as subpart 4 expressly 
governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
    Elsewhere in its opinion, however, the Court observed:

    Ammonia is a precursor to fine particulate matter, making it a 
precursor to both PM2.5 and PM10. For a 
PM10 nonattainment area governed by subpart 4, a 
precursor is presumptively regulated. See 42 U.S.C. Sec.  7513a(e) 
[section 189(e)].

Id. at 21, n.7. For a number of reasons, EPA believes that its proposed 
redesignation of the Milwaukee-Racine Area is consistent with the 
Court's decision on this aspect of subpart 4. First, while the Court, 
citing section 189(e), stated that ``for a PM10 area 
governed by subpart 4, a precursor is `presumptively regulated,' '' the 
Court expressly declined to decide the specific challenge to EPA's 1997 
PM2.5 implementation rule provisions regarding ammonia and 
VOC as precursors. The Court had no occasion to reach whether and how 
it was substantively necessary to regulate any specific precursor in a 
particular PM2.5 nonattainment area, and did not address 
what might be necessary for purposes of acting upon a redesignation 
request.
    However, even if EPA takes the view that the requirements of 
subpart 4 were deemed applicable at the time the state submitted the 
redesignation request, and disregards the implementation rule's 
rebuttable presumptions regarding ammonia and VOC as PM2.5 
precursors

[[Page 9143]]

(and any similar provisions reflected in the guidance for the 2006 
PM2.5 standard), the regulatory consequence would be to 
consider the need for regulation of all precursors from any sources in 
the area to demonstrate attainment and to apply the section 189(e) 
provisions to major stationary sources of precursors. In the case of 
the Milwaukee-Racine Area, EPA believes that proposing redesignation of 
the Milwaukee-Racine area for the 2006 24-hour PM2.5 
standard is consistent with section 189(e) of the CAA. The Milwaukee-
Racine Area has attained the standard without any specific additional 
controls of ammonia emissions from any sources in the area.
    Precursors in subpart 4 are specifically regulated under the 
provisions of section 189(e), which require, with important exceptions, 
control requirements for major stationary sources of PM10 
precursors.\8\ Under subpart 1 and EPA's prior implementation rule, all 
major stationary sources of PM2.5 precursors were subject to 
regulation, with the exception of ammonia and VOC. Thus we must address 
here whether additional controls of ammonia and VOC from major 
stationary sources are required under section 189(e) of subpart 4 in 
order to redesignate the area for the 2006 24-hour PM2.5 
standard. As explained below, we do not believe that any additional 
controls of ammonia and VOC are required in the context of this 
redesignation.
---------------------------------------------------------------------------

    \8\ Under either subpart 1 or subpart 4, for purposes of 
demonstrating attainment as expeditiously as practicable, a state is 
required to evaluate all economically and technologically feasible 
control measures for direct PM emissions and precursor emissions, 
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------

    In the General Preamble, EPA discusses its approach to implementing 
section 189(e). See 57 FR 13538-13542. With regard to precursor 
regulation under section 189(e), the General Preamble explicitly stated 
that control of VOC under other CAA requirements may suffice to relieve 
a state from the need to adopt precursor controls under section 189(e). 
57 FR 13542. EPA proposes to determine that the SIP has met the 
provisions of section 189(e) with respect to ammonia and VOCs as 
precursors. This proposed determination is based on our findings that: 
(1) The Milwaukee-Racine Area contains no major stationary sources of 
ammonia, and (2) existing major stationary sources of VOC are 
adequately controlled under other provisions of the CAA regulating the 
ozone NAAQS.\9\ In the alternative, EPA proposes to determine that, 
under the express exception provisions of section 189(e), and in the 
context of the redesignation of the area, which is attaining the 2006 
24-hour PM2.5 standard, at present ammonia and VOC 
precursors from major stationary sources do not contribute 
significantly to PM2.5 levels exceeding the 2006 24-hour 
PM2.5 standard in the Milwaukee-Racine Area. See 57 FR 
13539-42.
---------------------------------------------------------------------------

    \9\ The Milwaukee-Racine Area has reduced VOC emissions through 
the implementation of various control programs including VOC 
Reasonably Available Control Technology regulations and various 
onroad and nonroad motor vehicle control programs.
---------------------------------------------------------------------------

    EPA's 1997 PM2.5 implementation rule provisions in 40 
CFR 51.1002 were not directed at evaluation of PM2.5 
precursors in the context of redesignation, but at SIP plans and 
control measures required to bring a nonattainment area into attainment 
of the 2006 24-hour PM2.5 NAAQS. By contrast, redesignation 
to attainment primarily requires the area to have already attained due 
to permanent and enforceable emission reductions, and to demonstrate 
that controls in place can continue to maintain the standard. Thus, 
even if we regard the Court's January 4, 2013, decision as calling for 
``presumptive regulation'' of ammonia and VOC for PM2.5 
under the attainment planning provisions of subpart 4, those provisions 
in and of themselves do not require additional controls of these 
precursors for an area that already qualifies for redesignation. Nor 
does EPA believe that requiring Wisconsin to address precursors 
differently than they have already would result in a substantively 
different outcome.
    Although, as EPA has emphasized, its consideration here of 
precursor requirements under subpart 4 is in the context of a 
redesignation to attainment, EPA's existing interpretation of subpart 4 
requirements with respect to precursors in attainment plans for 
PM10 contemplates that states may develop attainment plans 
that regulate only those precursors that are necessary for purposes of 
attainment in the area in question, i.e., states may determine that 
only certain precursors need be regulated for attainment and control 
purposes.\10\ Courts have upheld this approach to the requirements of 
subpart 4 for PM10.\11\ EPA believes that application of 
this approach to PM2.5 precursors under subpart 4 is 
reasonable. Because the Milwaukee-Racine Area has already attained the 
2006 24-hour PM2.5 NAAQS with its current approach to 
regulation of PM2.5 precursors, EPA believes that it is 
reasonable to conclude in the context of this redesignation that there 
is no need to revisit the attainment control strategy with respect to 
the treatment of precursors. Even if the Court's decision is construed 
to impose an obligation, in evaluating this redesignation request, to 
consider additional precursors under subpart 4, it would not affect 
EPA's approval here of Wisconsin's request for redesignation of the 
Milwaukee-Racine Area. In the context of a redesignation, the area has 
shown that it has attained the standard. Moreover, the state has shown 
and EPA has proposed to determine that attainment in this area is due 
to permanent and enforceable emissions reductions on all precursors 
necessary to provide for continued attainment. It follows logically 
that no further control of additional precursors is necessary. 
Accordingly, EPA does not view the January 4, 2013, decision of the 
Court as precluding redesignation of the Milwaukee-Racine Area to 
attainment for the 2006 24-hour PM2.5 NAAQS at this time.
---------------------------------------------------------------------------

    \10\ See, e.g., ``Approval and Promulgation of Implementation 
Plans for California--San Joaquin Valley PM-10 Nonattainment Area; 
Serious Area Plan for Nonattainment of the 24-Hour and Annual PM-10 
Standards,'' 69 FR 30006 (May 26, 2004) (approving a PM10 
attainment plan that impose controls on direct PM10 and 
NOX emissions and did not impose controls on 
SO2, VOC, or ammonia emissions).
    \11\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------

    In sum, even if Wisconsin was required to address precursors for 
the Milwaukee-Racine Area under subpart 4 rather than under subpart 1, 
as interpreted in EPA's remanded PM2.5 implementation rule, 
EPA would still conclude that the area had met all applicable 
requirements for purposes of redesignation in accordance with section 
107(d)(3)(E)(ii) and (v).
(iv) Maintenance Plan and Evaluation of Precursors
    A discussion of the impact of the Court's decision on the 
maintenance plan required under sections 175A and 107(d)(3)(E)(iv) can 
be found in section IV.A.5.d., below.
b. The Milwaukee-Racine Area Has a Fully Approved Applicable SIP Under 
Section 110(k) of the CAA
    Upon final approval of Wisconsin's comprehensive emissions 
inventory, EPA will have fully approved the Wisconsin SIP for the 
Milwaukee-Racine Area under section 110(k) of the CAA for all 
requirements applicable for purposes of redesignation. EPA may rely on 
prior SIP approvals in approving a redesignation request (See page 3 of 
the

[[Page 9144]]

Calcagni memorandum; 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)) plus any additional measures it may approve in 
conjunction with a redesignation action. See 68 FR 25413, 25426 (May 
12, 2003). Since the passage of the CAA of 1970, Wisconsin has adopted 
and submitted, and EPA has fully approved, provisions addressing 
various required SIP elements under particulate matter standards. In 
this action, EPA is proposing to approve Wisconsin's 2006 comprehensive 
emissions inventory for VOC, SO2, NOX and 
PM2.5 as well as the 2007 supplemental inventory for ammonia 
for the Milwaukee-Racine Area as meeting the requirement of section 
172(c)(3) of the CAA. No Milwaukee-Racine Area SIP provisions are 
currently disapproved, conditionally approved, or partially approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable 
Reductions in Emissions Resulting From Implementation of the SIP and 
Applicable Federal Air Pollution Control Regulations and Other 
Permanent and Enforceable Reductions (Section 107(d)(3)(E)(iii))
    EPA finds that Wisconsin has demonstrated that the observed air 
quality improvement in the Milwaukee-Racine Area is due to permanent 
and enforceable reductions in emissions resulting from implementation 
of the SIP, Federal measures, and other state-adopted measures.
    In making this showing, Wisconsin has calculated the change in 
emissions between 2006, one of the years in the period during which the 
Milwaukee-Racine Area monitored nonattainment, and 2010, one of the 
years in the period during which the Milwaukee-Racine Area monitored 
attainment. The reduction in emissions and the corresponding 
improvement in air quality over this time period can be attributed to a 
number of regulatory control measures that the Milwaukee-Racine Area 
and upwind areas have implemented in recent years.
a. Permanent and Enforceable Controls Implemented
    The following is a discussion of permanent and enforceable measures 
that have been implemented in the area:
i. Consent Decrees
    A May 7, 2010, consent decree with Saint-Gobain Containers required 
the Burlington Plant, located in Burlington, Wisconsin, to install oxy-
fuel technology and to be subjected to a NOX emission limit 
of 1.3 pounds per ton of glass produced. The facility is also subjected 
to an SO2 emissions limit of 0.8 pounds per ton of glass 
produced. An August 2, 2010, consent decree requires Silgan Containers 
Manufacturing Plants in Menomonee Falls and Oconomowoc to reduce VOC 
emissions by approximately 10 tons per year (tpy) in Oconomowoc and to 
eliminate another 86.3 tpy of VOC emissions from their Menomonee Falls 
facility.
ii. Federal Emission Control Measures
    Reductions in fine particle precursor 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 the following:
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards. These emission control requirements result in lower VOC, 
NOX, and SO2 emissions from new cars and light 
duty trucks, including sport utility vehicles. The Federal rules were 
phased in between 2004 and 2009. The EPA has estimated that, by the 
time post-2009 vehicles have entirely replaced pre-2009 vehicles, the 
following vehicle NOX emission reductions will have occurred 
nationwide: Passenger cars (light duty vehicles) (77 percent); light 
duty trucks, minivans, and sports utility vehicles (86 percent); and, 
larger sports utility vehicles, vans, and heavier trucks (69 to 95 
percent). Some of the emissions reductions resulting from new vehicle 
standards occurred during the 2008-2010 attainment period; however, 
additional reductions will continue to occur throughout the maintenance 
period as new vehicles replace older vehicles. The Tier 2 standards 
also reduced the sulfur content of gasoline to 30 parts per million 
(ppm) beginning in January 2006. Gasoline sold in the region including 
Wisconsin prior to implementation of the Tier 2 sulfur content limits 
had an average sulfur content of 276 ppm.\12\
---------------------------------------------------------------------------

    \12\ See Regulatory Impact Analysis--Control of Air Pollution 
From New Motor Vehicles: Tier 2 Motor Vehicle Emissions Standards 
and Gasoline Sulfur Control Requirements, December 1999, EPA420-R-
99-023, p. IV-42.
---------------------------------------------------------------------------

    Heavy-Duty Diesel Engine Rule. This rule, which EPA issued in July 
2000, limited the sulfur content of diesel fuel beginning in 2004. A 
second phase took effect in 2007 which reduced fine particle emissions 
from heavy-duty highway engines and further reduced the highway diesel 
fuel sulfur content to 15 ppm. The total program is estimated to 
achieve a 90 percent reduction in direct PM2.5 emissions and 
a 95 percent reduction in NOX emissions for these new 
engines using low sulfur diesel, compared to existing engines using 
higher sulfur content diesel. The reductions in fuel sulfur content 
occurred by the 2008-2010 attainment period. Some of the emissions 
reductions resulting from new vehicle standards occurred during the 
2008-2010 attainment period, however additional reductions will 
continue to occur throughout the maintenance period as the fleet of 
older heavy duty diesel engines turns over. The reduction in fuel 
sulfur content also yielded an immediate reduction in sulfate particle 
emissions from all diesel vehicles.
    Nonroad Diesel Rule. In May 2004, EPA promulgated a new rule for 
large nonroad diesel engines, such as those used in construction, 
agriculture, and mining equipment, which established engine emission 
standards to be phased in between 2008 and 2014. The rule also required 
reductions to the sulfur content in nonroad diesel fuel by over 99 
percent. Prior to 2006, nonroad diesel fuel averaged approximately 
3,400 ppm sulfur. This rule limited nonroad diesel sulfur content to 
500 ppm by 2006, with a further reduction to 15 ppm, by 2010. The 
combined engine and fuel rules will reduce NOX and PM 
emissions from large nonroad diesel engines by over 90 percent, 
compared to current nonroad engines using higher sulfur content diesel. 
The reduction in fuel sulfur content yielded an immediate reduction in 
sulfate particle emissions from all diesel vehicles. In addition, some 
emissions reductions from the new engine emission standards were 
realized over the 2008-2010 time period, although most of the 
reductions will occur over the maintenance period as the fleet of older 
nonroad diesel engines turns over.
    Nonroad Large Spark-Ignition Engine and Recreational Engine 
Standards. In November 2002, EPA promulgated emission standards for 
groups of previously unregulated nonroad engines. These engines include 
large spark-ignition engines such as those used in forklifts and 
airport ground-service equipment; recreational vehicles using spark-
ignition engines such as off-highway motorcycles, all-terrain vehicles, 
and snowmobiles; and recreational marine diesel engines. Emission 
standards from large spark-ignition engines were implemented in two 
tiers, with Tier 1 starting in 2004 and Tier 2 in 2007. Recreational 
vehicle emission standards are being phased in from 2006 through 2012. 
Marine Diesel engine standards were phased in from 2006 through 2009. 
With full

[[Page 9145]]

implementation of all of the nonroad spark-ignition engine and 
recreational engine standards, an overall 72 percent reduction in VOC, 
80 percent reduction in NOX and 56 percent reduction in 
carbon monoxide (CO) emissions are expected by 2020. Some of these 
emission reductions occurred by the 2008-2010 attainment period and 
additional emission reductions will occur during the maintenance period 
as the fleet turns over.
iii. Control Measures Implemented in Wisconsin and in Upwind Areas
    CAIR and CSAPR. EPA promulgated CSAPR (76 FR 48208, August 8, 
2011), to replace CAIR, which has been in place since 2005. See 76 FR 
59517. CAIR requires significant reductions in emissions of 
SO2 and NOX from electric generating units to 
limit the interstate transport of these pollutants and the ozone and 
fine particulate matter they form in the atmosphere. See 76 FR 70093. 
The D.C. Circuit initially vacated CAIR, North Carolina v. EPA, 531 
F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA 
without vacatur to preserve the environmental benefits provided by 
CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
    On December 30, 2011, the D.C. Circuit issued an order addressing 
the status of CSAPR and CAIR in response to motions filed by numerous 
parties seeking a stay of CSAPR pending judicial review. In that order, 
the Court stayed CSAPR pending resolution of the petitions for review 
of that rule in EME Homer City (No. 11-1302 and consolidated cases). 
The Court also indicated that EPA was expected to continue to 
administer CAIR in the interim until judicial review of CSAPR was 
completed.
    On August 21, 2012, the D.C. Circuit issued a decision to vacate 
CSAPR. In that decision, it also ordered EPA to continue administering 
CAIR ``pending the promulgation of a valid replacement.'' EME Homer 
City, 696 F.3d at 38. The D.C. Circuit denied all petitions for 
rehearing on January 24, 2013. EPA and other parties filed petitions 
for certiorari to the U.S. Supreme Court. On June 24, 2013, the Supreme 
Court granted certiorari and agreed to review the D.C. Circuit's 
decision in EME Homer City. The Supreme Court's grant of certiorari, by 
itself, does not alter the status of CAIR or CSAPR. At this time, CAIR 
remains in place.
    In light of these unique circumstances and for the reasons 
explained below, to the extent that attainment is due to emission 
reductions associated with CAIR, EPA is here proposing to determine 
that those reductions are sufficiently permanent and enforceable for 
purposes of CAA sections 107(d)(3)(E)(iii) and 175A. EPA therefore 
proposes to approve the redesignation requests and the related SIP 
revisions for the Milwaukee-Racine Area, including Wisconsin's plan for 
maintaining attainment of the PM2.5 standard.
    As directed by the D.C. Circuit, CAIR remains in place and 
enforceable until substituted by a valid replacement rule. Wisconsin 
submitted a CAIR SIP which was approved by EPA on October 16, 2007 (72 
FR 58542). In its redesignation request, Wisconsin notes that all 
potential emission reductions resulting from CAIR and CSAPR have been 
left out of the maintenance emission inventory projections.
    Although Wisconsin is not relying on CAIR in its maintenance plan, 
the directive from the D.C. Circuit in EME Homer City ensures that the 
reductions associated with CAIR will be permanent and enforceable for 
the necessary time period. EPA has been ordered by the Court to develop 
a new rule to address interstate transport to replace CSAPR, and the 
opinion makes clear that after promulgating that new rule EPA must 
provide states an opportunity to draft and submit SIPs to implement 
that rule. Thus, CAIR will remain in place until EPA has promulgated a 
final rule through a notice-and-comment rulemaking process, states have 
had an opportunity to draft and submit SIPs, EPA has reviewed the SIPs 
to determine if they can be approved, and EPA has taken action on the 
SIPs, including promulgating a FIP if appropriate. The Court's clear 
instruction to EPA that it must continue to administer CAIR until a 
valid replacement exists provides an additional backstop: By 
definition, any rule that replaces CAIR and meets the Court's direction 
would require upwind states to have SIPs that eliminate significant 
contributions to downwind nonattainment and prevent interference with 
maintenance in downwind areas.
    Further, in vacating CSAPR and requiring EPA to continue 
administering CAIR, the D.C. Circuit emphasized that the consequences 
of vacating CAIR ``might be more severe now in light of the reliance 
interests accumulated over the intervening four years.'' EME Homer 
City, 696 F.3d at 38. The accumulated reliance interests include the 
interests of states who reasonably assumed they could rely on 
reductions associated with CAIR, which brought certain nonattainment 
areas into attainment with the NAAQS. If EPA were prevented from 
relying on reductions associated with CAIR in redesignation actions, 
states would be forced to impose additional, redundant reductions on 
top of those achieved by CAIR. EPA believes this is precisely the type 
of irrational result the Court sought to avoid by ordering EPA to 
continue administering CAIR. For these reasons also, EPA believes it is 
appropriate to allow states to rely on CAIR, and the existing emissions 
reductions achieved by CAIR, as sufficiently permanent and enforceable 
for purposes such as redesignation. Following promulgation of the 
replacement rule, EPA will review SIPs as appropriate to identify 
whether there are any issues that need to be addressed.
b. Emission Reductions
    Wisconsin developed annual emissions inventories for VOC, 
NOX, direct PM2.5, and SO2 for 2006, 
one of the years the Milwaukee-Racine Area monitored nonattainment 2006 
24-hour PM2.5 standard, and 2010, one of the years the area 
monitored attainment of the standard. In some circumstances, seasonal 
inventories may be useful for the 24-hour standard. For example, in 
some nonattainment areas, all of the highest PM2.5 
concentrations occur in one season. In the case of the Milwaukee-Racine 
Area, Wisconsin analyzed the PM2.5 monitoring data and found 
that violations occurred for 24-hour average time periods during the 
Winter.
    Therefore, it was necessary to construct emission inventories for a 
time period that is most associated with elevated levels of 24-hour 
PM2.5 concentrations. Within Wisconsin's redesignation 
request package, the state references a 2011 PM2.5 study 
that evaluated the collective month-of-year profiles of average 24-hour 
FRM PM2.5 levels during 1999-2010. This assessment 
identified the meteorological winter months of December, January, and 
February as having both the highest monthly average PM2.5 
concentrations and the highest monthly percentage of site-days with 24-
hour PM2.5 concentrations greater than 30 [mu]g/m3. 
Accordingly, the state designed and constructed emission inventories 
for their PM2.5 redesignation request to focus on pollution-
related activity levels during the winter months (more specifically--
for an average January weekday).
    The emission inventories submitted by Wisconsin were developed with 
the assistance of the Lake Michigan Air Directors Consortium (LADCO). 
The main purpose of LADCO is to provide technical assessments for and 
assistance to its member states on problems of air

[[Page 9146]]

quality. LADCO's primary geographic focus is the area encompassed by 
its member states (Illinois, Indiana, Michigan, Ohio, Minnesota and 
Wisconsin) and any areas which affect air quality in its member states.
    The 2006 nonattainment inventory was developed as described below. 
Point source emissions for 2006 were estimated using linear 
interpolations from 2005 to 2008 emissions inventories. The 2005 and 
2008 emissions inventories were created using annually reported point 
source emissions, EPA's Clean Air Markets Database and approved U.S. 
EPA techniques for emissions calculation (e.g., emission factors). 
Whenever feasible, Federal, state and local controls were factored into 
the emission calculations. Emissions were estimated by collecting 
process level information from each facility that qualifies for 
inclusion into the state's point source database.
    Area source sector emissions were created by backcasting the 
Wisconsin 2008 base year emissions inventory submitted to EPA in 2010 
for the National Emissions Inventory. The backcasting factors were 
primarily based on growth factors from the Economic Growth and Analysis 
System model.
    The 2006 nonroad mobile emission estimates were created by using 
EPA's National Mobile Inventory (NMIM) model (2009/05/04 Version). The 
2006 aircraft, marine and rail emissions were estimated using linear 
interpolation from the 2005 and 2008 emissions inventories. Pechan 
provided marine and rail emission estimates via LADCO for Wisconsin. 
Pechan is an independent contractor, which, through contracts with 
LADCO, has developed state-specific emission inventory data, including 
growth factors, for the entire LADCO region. Aircraft emissions were 
calculated using the Federal Aviation Administration's Emissions and 
Dispersion Modeling System (EDMS).
    The 2006 onroad mobile emission estimates were created by using the 
EPA's MOVES2010a model.
    The 2010 attainment year inventories were developed using the same 
techniques as those used to develop the nonattainment year inventories.
    NOX, direct PM2.5, SO2, and VOC 
emissions data are shown in Table 4 below.

           Table 4--Comparison of 2006 and 2010 NOX, direct PM2.5, SO2, and VOC Emission Totals by Source Sector in Tons per Winter Day (tpwd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   2006                                    2010                            Net change 2006-2010
             Sector              -----------------------------------------------------------------------------------------------------------------------
                                    PM2.5      NOX       SO2       VOC      PM2.5      NOX       SO2       VOC      PM2.5      NOX       SO2       VOC
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...........................      1.05     29.44     61.43     11.36      0.02     29.98     61.82      8.12     -1.03      0.54      0.39     -3.24
Area............................     18.62     20.05      4.56     70.58     18.89     20.40      4.53     72.27      0.27      0.35     -0.03      1.69
Nonroad.........................      1.24     21.66      1.98     12.13      1.23     18.02      0.50      9.77     -0.01     -3.64     -1.48     -2.36
Onroad..........................      4.62     93.10      1.49     47.56      3.45     65.71      0.47     37.24     -1.17    -27.39     -1.02    -10.32
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................     25.53    164.25     69.46    141.63     23.59    134.11     67.32     127.4     -1.94    -30.14     -2.14    -14.23
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 4 shows that the Milwaukee-Racine Area reduced direct 
PM2.5, NOX, SO2, and VOC emissions by 
1.94 tpwd, 30.14 tpwd, 2.14 tpwd, and 14.23 tpwd, respectively, between 
2006 and 2010. Based on the information summarized above, Wisconsin has 
adequately demonstrated that the improvement in air quality is due to 
permanent and enforceable emissions reductions. On May 30, 2013, 
Wisconsin submitted supplemental information regarding emissions of 
ammonia. This information is reviewed below. Ammonia levels remain 
constant from the nonattainment year to the attainment year and we do 
not expect that to change during the maintenance period. However, EPA 
believes that the improvement in air quality is attributable to the 
PM2.5, NOX, SO2, and VOC emission 
reductions described above and is not significantly affected by any 
changes in ammonia emissions.
4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section 
175A of the CAA. (Section 107(d)(3)(E)(iv))
    In conjunction with Wisconsin's requests to redesignate the 
Milwaukee-Racine Area to attainment status, Wisconsin submitted SIP 
revisions to provide for maintenance of 2006 24-hour PM2.5 
NAAQS in the area through 2025.
a. What is required in a maintenance plan?
    Section 175A of the CAA sets forth the required elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. Under section 175A, the plan must demonstrate continued 
attainment of the applicable NAAQS for at least ten years after EPA 
approves a redesignation to attainment. Eight years after 
redesignation, the state must submit a revised maintenance plan which 
demonstrates that attainment will continue to be maintained for ten 
years following the initial ten year maintenance period. To address the 
possibility of future NAAQS violations, the maintenance plan must 
contain contingency measures with a schedule for implementation as EPA 
deems necessary to assure prompt correction of any future 
PM2.5 violations.
    The September 4, 1992, John Calcagni memorandum provides additional 
guidance on the content of a maintenance plan. The memorandum states 
that a maintenance plan should address the following items: the 
attainment emissions inventories, a maintenance demonstration showing 
maintenance for the ten years of the maintenance period, a commitment 
to maintain the existing monitoring network, factors and procedures to 
be used for verification of continued attainment of the NAAQS, and a 
contingency plan to prevent or correct future violations of the NAAQS.
b. Attainment Inventory
    The Wisconsin DNR developed annual emissions inventories for 
NOX, direct PM2.5, and SO2 for 2010, 
one of the years the area monitored attainment of the 2006 24-hour 
PM2.5 standard, as described in section IV.A.3.b.. The 
attainment level of emissions is summarized in Table 4, above.
c. Demonstration of Maintenance
    Along with the redesignation requests, Wisconsin submitted 
revisions to the Wisconsin PM2.5 SIP to include maintenance 
plans for the Milwaukee-Racine Area, as required by section 175A of the 
CAA. Section 175A requires a state seeking redesignation to attainment 
to submit a SIP revision to provide for the maintenance of the NAAQS in 
the area ``for at least 10 years after the redesignation.'' EPA has

[[Page 9147]]

interpreted this as a showing of maintenance ``for a period of ten 
years following redesignation.'' Calcagni Memorandum, p. 9. Where the 
emissions inventory method of showing maintenance is used, its purpose 
is to show that emissions during the maintenance period will not 
increase over the attainment year inventory. Calcagni Memorandum, pp. 
9-10.
    As discussed in detail in the section below, Wisconsin's 
maintenance plan submissions expressly document that the area's 
emissions inventories will remain below the attainment year inventories 
through 2025. In addition, for the reasons set forth below, EPA 
believes that the state's submissions, in conjunction with additional 
supporting information, further demonstrate that the area will continue 
to maintain the PM2.5 standard at least through 2025. Thus, 
if EPA finalizes its proposed approval of the redesignation requests 
and maintenance plan in 2013, it is based on a showing, in accordance 
with section 175A, that the state's maintenance plan provides for 
maintenance for at least ten years after redesignation.
    Wisconsin's plan demonstrates maintenance of the 2006 24-hour 
PM2.5 NAAQS through 2025 by showing that current and future 
emissions of NOX, directly emitted PM2.5, 
SO2, and VOC for the area remain at or below attainment year 
emission levels. 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). As 
discussed below, a comparison of current and future emissions 
inventories for ammonia show relatively constant emissions, which 
further support a finding that the area will continue to maintain the 
standard.
    For NOX, directly emitted PM2.5, 
SO2, and VOC, Wisconsin is using emissions inventory 
projections for the years 2020 and 2025 to demonstrate maintenance. The 
projected emissions were estimated by the WDNR, with assistance from 
LADCO. As discussed in section IV.A.4.a., above, many of the control 
programs that helped to bring the area into attainment of the standard 
will continue to achieve additional emission reductions over the 
maintenance period. These control programs include Tier 2 emission 
standards for vehicles and gasoline sulfur standards, the heavy-duty 
diesel engine rule, the nonroad diesel rule, and the nonroad large 
spark-ignition engine and recreation engine standards. Emissions data 
for all sources by source sector are shown in Tables 5 through 7, 
below.

Table 5--Comparison of 2006, 2010, 2020, and 2025 NOX Emission Totals by Source Sector (tpwd) for the Milwaukee-
                                                   Racine Area
----------------------------------------------------------------------------------------------------------------
                                                                        NOX
                                  ------------------------------------------------------------------------------
              Sector                                                                                 Net change
                                        2006            2010            2020            2025         2010-2025
----------------------------------------------------------------------------------------------------------------
Point............................           29.44           29.98           23.94           19.97        -10.017
Area.............................           20.05           20.40           18.20           17.87         -2.53
Nonroad..........................           21.66           18.02            7.57            5.65        -12.37
Onroad \14\......................           93.10           65.71           32.62           28.69        -37.02
                                  ------------------------------------------------------------------------------
    Total........................          164.25          134.11           82.33           72.18        -61.93
----------------------------------------------------------------------------------------------------------------


 Table 6--Comparison of 2006, 2010, 2020, and 2025 Direct PM2.5 Emission Totals by Source Sector (tpwd) for the
                                              Milwaukee-Racine Area
----------------------------------------------------------------------------------------------------------------
                                                                  Direct PM2.5
                              ----------------------------------------------------------------------------------
            Sector                                                                             Net change  2010-
                                    2006            2010            2020            2025              2025
----------------------------------------------------------------------------------------------------------------
Point \13\...................            1.05            0.02            0.32            0.44               0.42
Area.........................           18.62           18.89           17.39           17.20              -1.69
Nonroad......................            1.24            1.23            0.64            0.50              -0.73
Onroad \14\..................            4.62            3.45            2.33            2.16              -1.29
                              ----------------------------------------------------------------------------------
    Total....................           25.53           23.59           20.68           20.30              -3.29
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \13\ Includes Electric generating units.
    \14\ Emissions projections for the onroad sector were generated 
using the MOVES model. Wisconsin submitted the MOVES based 
NOX and direct PM2.5 emissions projections and 
MVEBs for the onroad sector on January 17, 2013, to replace the 
MOBILE6.2 based onroad emissions projections and MVEBs submitted as 
part of the maintenance plan.

Table 7--Comparison of 2006, 2010, 2020, and 2025 SO2 Emission Totals by Source Sector (tpwd) for the Milwaukee-
                                                   Racine Area
----------------------------------------------------------------------------------------------------------------
                                                                        SO2
                                 -------------------------------------------------------------------------------
             Sector                                                                                 Net change
                                       2006            2010            2020            2025          2010-2025
----------------------------------------------------------------------------------------------------------------
Point...........................           61.43           61.82           27.84           10.45          -51.37
Area............................            4.56            4.53            3.88            3.68           -0.85

[[Page 9148]]

 
Nonroad.........................            1.98            0.50            0.39            0.37           -0.13
Onroad \15\.....................            1.49            0.47            0.39            0.38           -0.09
                                 -------------------------------------------------------------------------------
    Total.......................           69.46           67.32           32.50           14.88          -52.44
----------------------------------------------------------------------------------------------------------------


Table 8--Comparison of 2006, 2010, 2020, and 2025 VOC Emission Totals by Source Sector (tpwd) for the Milwaukee-
                                                   Racine Area
----------------------------------------------------------------------------------------------------------------
                                                                        NOX
                                 -------------------------------------------------------------------------------
             Sector                                                                                 Net change
                                       2006            2010            2020            2025          2010-2025
----------------------------------------------------------------------------------------------------------------
Point...........................           11.36            8.12           10.31           11.40            3.28
Area............................           70.58           72.27           71.70           75.05            2.78
Nonroad.........................           12.13            9.77            7.91            8.27           -1.50
Onroad \14\.....................           47.56           37.24           15.89           11.98          -25.26
                                 -------------------------------------------------------------------------------
    Total.......................          141.63          127.40          105.81          106.70          -20.70
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \15\ Onroad sector emissions were projected using the MOBILE6.2 
emissions model.
---------------------------------------------------------------------------

    Tables 5-8 show that emissions of NOX, direct 
PM2.5, SO2, and VOC, are projected to decrease by 
92.07 tpwd, 2.46 tpwd, 54.58 tpwd, and 20.70 tpwd respectively, between 
2010 and 2025. Furthermore, fleet turnover in onroad and nonroad 
vehicles that will continue to occur after 2025 will continue to 
provide additional significant emission reductions.
    In addition, as Tables 1 and 2 demonstrate, monitored 
PM2.5 design value concentrations in the Milwaukee-Racine 
Area are well below the NAAQS in the years beyond 2010, an attainment 
year for the area. Further, those values are trending downward as time 
progresses. Based on the future projections of emissions in 2015 and 
2025 showing significant emissions reductions in direct 
PM2.5, NOX, SO2, and VOC, it is very 
unlikely that monitored PM2.5 values in 2025 and beyond will 
show violations of the NAAQS. Additionally, the 2010-2012 design value 
of 29 [mu]g/m\3\ for 24-hour standard provides a sufficient margin in 
the unlikely event emissions rise slightly in the future.
    Based on the information summarized above, Wisconsin has adequately 
demonstrated maintenance of the PM2.5 standard for a period 
extending ten years from the date that EPA may be expected to complete 
rulemaking on the state's redesignation request.
d. Maintenance Plan and Evaluation of Precursors
    With regard to the redesignation of the Milwaukee-Racine 
nonattainment Area, in evaluating the effect of the Court's remand of 
EPA's implementation rule, which included presumptions against 
consideration of VOC and ammonia as PM2.5 precursors, EPA in 
this proposal is also considering the impact of the decision on the 
maintenance plan required under sections 175A and 107(d)(3)(E)(iv). To 
begin with, EPA notes that the area has attained the 2006 
PM2.5 standard and that the state has shown that attainment 
of that standard is due to permanent and enforceable emission 
reductions.
    EPA finds that the state's maintenance plan shows continued 
maintenance of the standard by tracking the levels of the precursors 
whose control brought about attainment of the 2006 24-hour 
PM2.5 standard in the Milwaukee-Racine Area, NOX, 
direct PM2.5, SO2, and VOC. EPA therefore 
believes that the only additional consideration related to the 
maintenance plan requirements that results from the Court's January 4, 
2013, decision is that of assessing the potential role of ammonia in 
demonstrating continued maintenance in this area. As explained below, 
based upon documentation provided by the state and supporting 
information, EPA believes that the maintenance plan for the Milwaukee-
Racine Area need not include any additional emission reductions of 
ammonia in order to provide for continued maintenance of the standard.
    Total ammonia emissions throughout the Milwaukee-Racine Area are 
very low, estimated to be less than 2,400 tons per year. See Table 9 
below. This amount of ammonia emissions is small in comparison to the 
total amounts of SO2, NOX, VOC, and even direct 
PM2.5 emissions from sources in the area. Moreover, as 
described below, available information shows that no precursor, 
including ammonia, is expected to increase over the maintenance period 
so as to interfere with or undermine the state's maintenance 
demonstration.
    Wisconsin's maintenance plan shows that emissions of direct 
PM2.5, SO2, NOX, and VOC are projected 
to decrease by 5.23 tpwd, 54.58 tpwd, 92.07 tpwd, and 20.70 tpwd, 
respectively, over the maintenance period. See Tables 5-8 above. In 
addition, emissions inventories used in the regulatory impact analysis 
(RIA) for the 2012 PM2.5 NAAQS show that ammonia emissions 
are projected to decrease by 65 tpy between 2007 and 2020. See Table 9 
below. While the RIA emissions inventories are only projected out to 
2020, there is no reason to believe that this downward trend would not 
continue through 2025. Given that the Milwaukee-Racine Area is already 
attaining the 2006 24-hour PM2.5 NAAQS even with the current 
level of emissions from sources in the area, the downward trend of 
emissions inventories would be consistent with continued attainment. 
Indeed, projected emissions reductions for the precursors that the 
state is addressing for purposes of the 2006 24-hour PM2.5 
NAAQS

[[Page 9149]]

indicate that the area should continue to attain the NAAQS following 
the precursor control strategy that the state has already elected to 
pursue. Even if ammonia emissions were to increase unexpectedly between 
2020 and 2025, the overall emissions reductions projected in direct 
PM2.5, SO2, NOX, and VOC would be 
sufficient to offset any increases. For these reasons, EPA believes 
that local emissions of all of the potential PM2.5 
precursors will not increase to the extent that they will cause 
monitored PM2.5 levels to violate the 2006 PM2.5 
NAAQS during the maintenance period.

  Table 9--Comparison of 2007 and 2020 Ammonia Emission Totals by Source Sector (tpwd) for the Milwaukee-Racine
                                                    Area \16\
----------------------------------------------------------------------------------------------------------------
                                                                                                    Net change
                             Sector                                    2007            2020          2007-2020
----------------------------------------------------------------------------------------------------------------
Point...........................................................              33             149             116
Area............................................................           1,848           1,885              37
Nonroad.........................................................               8              10               1
Onroad..........................................................             529             309            -219
Fires...........................................................               5               5               0
                                                                 -----------------------------------------------
    Total.......................................................           2,423           2,358             -65
----------------------------------------------------------------------------------------------------------------

    In addition, available air quality modeling analyses show continued 
maintenance of the standard during the maintenance period.
---------------------------------------------------------------------------

    \16\ These emissions estimates were taken from the emissions 
inventories developed for the RIA for the 2012 PM2.5 
NAAQS.
---------------------------------------------------------------------------

    Wisconsin modeling using Round 5 emission files from LADCO updated 
``Modeled Attainment Test Software (MATS--October 2012)'' from EPA, was 
completed in March, 2013. The predicted 2018 design value is 33 [mu]g/
m\3\, below the 2006 24-hour PM2.5 NAAQS. Future utility 
fuel projections could be updated, likely resulting in even lower 
PM2.5 design values.
    Thus, EPA believes that there is ample justification to conclude 
that the Milwaukee-Racine Area should be redesignated, even taking into 
consideration the emissions of other precursors potentially relevant to 
PM2.5. After consideration of the D.C. Circuit's January 4, 
2013, decision, and for the reasons set forth in this notice, EPA 
proposes to approve the state's maintenance plan and its request to 
redesignate the Milwaukee-Racine Area to attainment for the 2006 24-
hour PM2.5 standard.
e. Monitoring Network
    Wisconsin currently operates five monitors for purposes of 
determining attainment with the 2006 24-hour PM2.5 standard 
in the Milwaukee-Racine Area. Wisconsin has committed to continue to 
operate and maintain these monitors and will consult with EPA prior to 
making any changes to the existing monitoring network. WDNR remains 
obligated to continue to quality assure monitoring data in accordance 
with 40 CFR part 58 and enter all data into the AQS in accordance with 
Federal guidelines.
f. Verification of Continued Attainment
    Continued attainment of the PM2.5 NAAQS in the 
Milwaukee-Racine Area depends, in part, on the state's efforts toward 
tracking indicators of continued attainment during the maintenance 
period. Wisconsin's plan for verifying continued attainment of the 24-
hour PM2.5 standard in the Milwaukee-Racine Area consists of 
continued ambient PM2.5 monitoring in accordance with the 
requirements of 40 CFR part 58. Wisconsin DNR will also continue to 
develop and submit periodic emission inventories as required by the 
Federal Consolidated Emissions Reporting Rule (codified at 40 CFR part 
51 subpart A) to track future levels of emissions.
g. Contingency Plan
    The contingency plan provisions are designed to promptly correct or 
prevent a violation of the NAAQS that might occur after redesignation 
of an area to attainment. Section 175A of the CAA requires that a 
maintenance plan include such contingency measures as EPA deems 
necessary to assure that the state will promptly correct a violation of 
the NAAQS that occurs after redesignation. The maintenance plan should 
identify the contingency measures to be adopted, a schedule and 
procedure for adoption and implementation of the contingency measures, 
and a time limit for action by the state. The state should also 
identify specific indicators to be used to determine when the 
contingency measures need to be adopted and implemented. The 
maintenance plan must include a requirement that the state will 
implement all measures with respect to control of the pollutant(s) that 
were contained in the SIP before redesignation of the area to 
attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Wisconsin has adopted a 
contingency plan for the Milwaukee-Racine Area to address possible 
future 24-hour PM2.5 air quality problems. Under Wisconsin's 
plan, if a violation of the 2006 24-hour PM2.5 standard 
occurs, WDNR will evaluate existing but not fully implemented, 
forthcoming, and, if necessary, new control measures to correct the 
violation of the standard within 18 months. Wisconsin has confirmed 
EPA's interpretation that this commitment means that the measure will 
be adopted and implemented within 18 months of the triggering event. In 
addition, it is EPA's understanding that to acceptably address a 
violation of the standard, existing and forthcoming control measures 
must be in excess of emissions reductions included in the projected 
maintenance inventories. Wisconsin's potential candidate contingency 
measures include the following:
    i. Broaden the application of the NOX RACT program to 
include a larger geographic area, and/or include sources with potential 
emissions of 50 tpy, and/or increase the cost effectiveness thresholds 
utilized as a basis for Wisconsin's NOX RACT Program;
    ii. Consideration of PM2.5 and SO2 RACT;
    iii. Diesel reduction emissions strategies;
    iv. Ammonia emission reduction strategies.
    EPA believes that Wisconsin's contingency plan satisfies the 
pertinent requirements of section 175A(d).
h. Provisions for Future Updates of the 24-Hour PM2.5 
Maintenance Plan
    As required by section 175A(b) of the CAA, Wisconsin commits to 
submit to EPA an updated maintenance plan eight years after 
redesignation of the

[[Page 9150]]

Milwaukee-Racine Area to attainment of the 2006 24-hour 
PM2.5 standard to cover an additional ten-year period beyond 
the initial ten year maintenance period. As required by section 175A of 
the CAA, Wisconsin has committed to retain the control measures 
contained in the SIP prior to redesignation, and to submit to EPA for 
approval as a SIP revision, any changes to its rules or emission limits 
applicable to SO2, NOX, or direct 
PM2.5 sources as required for maintenance of the 2006 24-
hour PM2.5 standard in the Milwaukee-Racine Area.
    EPA has concluded that the maintenance plan adequately addresses 
the five basic components of a maintenance plan: attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and a contingency plan.

B. Comprehensive Emissions Inventories

    As discussed above in section IV.A.2.a.ii., section 173(c)(3) of 
the CAA requires areas to submit a comprehensive, accurate and current 
emissions inventory. As part of the redesignation request, Wisconsin 
submitted 2006 and 2010 emissions inventories for NOX, 
direct PM2.5 and SO2, and VOC. These emissions 
inventories are discussed in section IV.A.3.b., above, and the data are 
shown in Table 4.
    On May 30, 2013, WDNR supplemented its submittal with a 2007/2008 
emissions inventory for ammonia. The additional emissions inventory 
information provided by the state addresses emissions of ammonia from 
the general source categories of point sources, area sources, onroad 
mobile sources, and nonroad mobile sources. The state-submitted 
emissions inventories were based upon information generated by LADCO in 
conjunction with its member states and are presented in Table 10 below.
    LADCO ran the EMS model using data provided by the state of 
Wisconsin to generate point source emissions estimates. The point 
source data supplied by the state was obtained from Wisconsin's source 
facility emissions reporting.
    For area sources, LADCO ran the EMS model using the 2008 National 
Emissions Inventory (NEI) data provided by Wisconsin. LADCO followed 
Eastern Regional Technical Advisory Committee (ERTAC) recommendations 
on area sources when preparing the data. Agricultural ammonia emissions 
were not taken from NEI; instead emissions were based on Carnegie 
Mellon University's Ammonia Emission Inventory for the Continental 
United States (CMU). Specifically, the CMU 2002 annual emissions were 
grown to reflect 2007 conditions. A process-based ammonia emissions 
model developed for LADCO was then used to develop temporal factors to 
reflect the impact of average meteorology on livestock emissions.
    Nonroad mobile source emissions were generated using the NMIM2008 
emissions model. LADCO also accounted for three other nonroad 
categories not covered by the NMIM model: Commercial marine vessels, 
aircraft, and railroads. Marine emissions were based on reports 
prepared by Environ entitled ``LADCO Nonroad Emissions Inventory 
Project for Locomotive, Commercial Marine, and Recreational Marine 
Emission Sources, Final Report, December 2004'' and ``LADCO 2005 
Commercial Marine Emissions, Draft, March 2, 2007.'' Aircraft emissions 
were provided by Wisconsin and calculated using AP-42 emission factors 
and landing and take-off data provided by the Federal Aviation 
Administration. Rail emissions were based on the 2008 inventory 
developed by ERTAC.
    Onroad mobile source emissions were generated using EPA's 
MOVES2010a emissions model.
    EPA notes that the emissions inventory developed by LADCO is 
documented in ``Regional Air Quality Analyses for Ozone, 
PM2.5, and Regional Haze: Base C Emissions Inventory'' 
(September 12, 2011).

 Table 10--Milwaukee-Racine Area Ammonia Emissions (tpwd) for 2007/2008
                            by Source Sector
------------------------------------------------------------------------
                            Sector                              Ammonia
------------------------------------------------------------------------
Point........................................................       0.08
Area.........................................................       4.51
Nonroad......................................................       0.01
Onroad.......................................................       1.78
                                                              ----------
  Total......................................................       6.38
------------------------------------------------------------------------

    EPA has concluded that the 2007/2008 ammonia emissions inventory 
provided by the state is complete and as accurate as possible given the 
input data available for the relevant source categories. EPA also 
believes that the inventory provides information about ammonia as a 
PM2.5 precursor in the context of evaluating redesignation 
of the Milwaukee-Racine Area under subpart 4. Therefore, we are 
proposing to approve the ammonia emissions inventory submitted by the 
state, in conjunction with the NOX, direct PM2.5, 
SO2, and VOC emissions inventories, as fully meeting the 
comprehensive inventory requirement of section 172(c)(3) of the CAA for 
the Milwaukee-Racine Area for the 2006 24-hour PM2.5 
standard.

C. Wisconsin's MVEBs

1. How are MVEBs developed?
    Under the CAA, states are required to submit, at various times, 
control strategy SIP revisions and maintenance plans for 
PM2.5 nonattainment areas and for areas seeking 
redesignations to attainment of the PM2.5 standard. These 
emission control strategy SIP revisions (e.g., RFP and attainment 
demonstration SIP revisions) and maintenance plans create MVEBs based 
on onroad mobile source emissions for criteria pollutants and/or their 
precursors to address pollution from onroad transportation sources. The 
MVEBs are the portions of the total allowable emissions that are 
allocated to highway and transit vehicle use that, together with 
emissions from other sources in the area, will provide for attainment, 
RFP or maintenance, as applicable.
    Under 40 CFR part 93, a MVEB for an area seeking a redesignation to 
attainment is established for the last year of the maintenance plan. 
The MVEB serves as a ceiling on emissions from an area's planned 
transportation system. The MVEB concept is further explained in the 
preamble to the November 24, 1993, transportation conformity rule (58 
FR 62188).
    Under section 176(c) of the CAA, transportation plans and 
transportation improvement programs (TIPs) must be evaluated to 
determine if they conform with the area's SIP. Conformity to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing air quality violations, or delay timely 
attainment of the NAAQS or any required interim milestone. If a 
transportation plan or TIP does not conform, most new transportation 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment 
strategies, rate-of-progress plans, and maintenance plans, EPA must 
affirmatively find ``adequate'' or approve for use in determining 
transportation conformity before the MVEBs can be used. Once EPA 
affirmatively approves or finds the submitted MVEBs to be adequate for 
transportation conformity purposes, the MVEBs must be used by state and

[[Page 9151]]

Federal agencies in determining whether transportation plans and TIPs 
conform to the SIP as required by section 176(c) of the CAA. EPA's 
substantive criteria for determining the adequacy of MVEBs are set out 
in 40 CFR 93.118(e)(4). Additionally, to approve a motor vehicle 
emissions budget EPA must complete a thorough review of the SIP, in 
this case the PM2.5 maintenance plan, and conclude that the 
SIP will achieve its overall purpose, in this case providing for 
maintenance of the 2006 24-hour PM2.5 standard.
    EPA's process for determining adequacy of a MVEB consists of three 
basic steps: (1) Providing public notification of a SIP submission; (2) 
providing the public the opportunity to comment on the MVEB during a 
public comment period; and, (3) EPA taking action on the MVEB. The 
process for determining the adequacy of submitted SIP MVEBs is codified 
at 40 CFR 93.118.
2. What are the MVEBs for the Milwaukee-Racine area?
    The maintenance plan submitted by Wisconsin for the Milwaukee-
Racine Area contains direct PM2.5, SO2, VOC, and 
NOX MVEBs for the area for the years 2020 and 2025. The 2020 
and 2025 MVEBs are set forth in Table 11 below.

                         Table 11--MVEBs for the Milwaukee-Racine Area for 2020 and 2025
----------------------------------------------------------------------------------------------------------------
                                                        NOX            PM2.5            SO2             VOC
----------------------------------------------------------------------------------------------------------------
2020............................................           32.62            2.33            0.39           15.89
2025............................................           28.69            2.16            0.38           11.98
----------------------------------------------------------------------------------------------------------------

    Wisconsin did not provide emission budgets for ammonia because it 
concluded, consistent with the presumptions regarding these precursors 
in the conformity rule at 40 CFR 93.102(b)(2)(v), which predated and 
was not disturbed by the litigation on the PM2.5 
implementation rule, that emissions of these precursors from motor 
vehicles are not significant contributors to the area's 
PM2.5 air quality problem.
    EPA issued conformity regulations to implement the 1997 
PM2.5 NAAQS in July 2004 and May 2005 (69 FR 40004, July 1, 
2004, and 70 FR 24280, May 6, 2005, respectively). Those actions were 
not part of the final rule recently remanded to EPA by the D.C. Circuit 
in NRDC v. EPA, No. 08-1250 (Jan. 4, 2013), in which the Court remanded 
to EPA the implementation rule for the PM2.5 NAAQS because 
it concluded that EPA must implement that NAAQS pursuant to the PM-
specific implementation provisions of subpart 4 of part D of title I of 
the CAA, rather than solely under the general provisions of subpart 1. 
That decision does not affect EPA's proposed approval of the Milwaukee-
Racine Area MVEBs.
    First, as noted above, EPA's conformity rule implementing the 1997 
PM2.5 NAAQS was a separate action from the overall 
PM2.5 implementation rule addressed by the Court and was not 
considered or disturbed by the decision. In addition, the state's 
maintenance plan shows continued maintenance through 2025 by 
demonstrating that NOX, SO2, VOC, and direct 
PM2.5 emissions will continue to decrease through the 
maintenance period. For ammonia, RIA inventories for 2007 and 2020 show 
that both onroad and total emissions are expected to decrease, 
supporting the state's conclusion, consistent with the presumptions 
regarding this precursor in the conformity rule, that emissions of 
ammonia from motor vehicles are not a significant contributor to the 
area's PM2.5 air quality problem and that MVEBs for this 
precursor are unnecessary.
    EPA has reviewed the submitted budgets for 2015 and 2025, using the 
conformity rule's adequacy criteria found at 40 CFR 93.118(e)(4). EPA 
finds that the area can maintain attainment of the 2006 24-hour 
PM2.5 NAAQS for the relevant maintenance period with onroad 
mobile source emissions at the levels of the MVEBs since total 
emissions will still remain under attainment year emission levels. EPA 
therefore finds adequate and proposes to approve the MVEBs submitted by 
Wisconsin for use in determining transportation conformity in the 
Milwaukee-Racine Area.

V. Summary of Proposed Actions

    EPA is proposing to determine that the Milwaukee-Racine Area is 
attaining the 2006 24-hour PM2.5 standard and that the area 
has met the requirements for redesignation under section 107(d)(3)(E) 
of the CAA. EPA is thus proposing to approve the request from WDNR to 
change the legal designation of the Milwaukee-Racine Area from 
nonattainment to attainment for the 2006 24-hour PM2.5 
standard. EPA is proposing to approve Wisconsin's PM2.5 
maintenance plan for the Milwaukee-Racine Area as a revision to the 
Wisconsin SIP because the plan meets the requirements of section 175A 
of the CAA. EPA is proposing to approve 2006 and 2010 emissions 
inventories for direct PM2.5, NOX, 
SO2, and VOC, and 2007/2008 emissions inventory for ammonia 
as satisfying the requirement in section 172(c)(3) of the CAA for a 
comprehensive, current emission inventory. Finally, EPA finds adequate 
and is proposing to approve the 2020 and 2025 NOX, direct 
PM2.5, SO2, and VOC MVEBs for the Milwaukee-
Racine area. These MVEBs will be used in future transportation 
conformity analyses for the area.

VI. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of a maintenance plan under section 107(d)(3)(E) 
are actions that affect the status of a geographical area and do not 
impose any additional regulatory requirements on sources beyond those 
imposed by state law. A redesignation to attainment does not in and of 
itself create any new requirements, but rather results in the 
applicability of requirements contained in the CAA for areas that have 
been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, these proposed actions do not impose additional 
requirements beyond those imposed by state law and the CAA. For that 
reason, these proposed actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     are certified as not having a significant economic impact 
on a

[[Page 9152]]

substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
     do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     are not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because a determination of attainment is an action that affects the 
status of a geographical area and does not impose any new regulatory 
requirements on tribes, impact any existing sources of air pollution on 
tribal lands, nor impair the maintenance of Fine Particulate national 
ambient air quality standards in tribal lands.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

40 CFR Part 81

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

    Dated: January 30, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014-03314 Filed 2-14-14; 8:45 am]
BILLING CODE 6560-50-P