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

[Federal Register: December 11, 2007 (Volume 72, Number 237)]
[Proposed Rules]
[Page 70255-70266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de07-15]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2007-0957; FRL-8504-1]

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make a determination under the Clean Air
Act (CAA) that the nonattainment area of Kewaunee County has attained
the 8-hour ozone National Ambient Air Quality Standard (NAAQS). This
determination is based on quality-assured ambient air quality
monitoring data for the 2004-2006 ozone seasons that demonstrate that
the 8-hour ozone NAAQS has been attained in the area. Preliminary
monitoring data for 2007 continue to show monitored attainment of the
NAAQS.
EPA is proposing to approve a request from the State of Wisconsin
to redesignate the Kewaunee County area to attainment of the 8-hour
ozone NAAQS. The Wisconsin Department of Natural Resources (WDNR)
submitted this request on June 12, 2007. In proposing to approve this
request EPA is also proposing to approve, as a revision to the
Wisconsin State Implementation Plan (SIP), the State's plan for
maintaining the 8-hour ozone NAAQS through 2018 in the area. EPA also
finds adequate and is proposing to approve the State's 2012 and 2018
Motor Vehicle Emission Budgets (MVEBs) for the Kewaunee County area.

DATES: Comments must be received on or before January 10, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0957, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 886-5824.
4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand delivery: John M. Mooney, Chief, Criteria Pollutant Section,
Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77

[[Page 70256]]

West Jackson Boulevard, 18th floor, 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-
2007-0957. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or e-mail.
The http://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 e-mail
comment directly to EPA without going through http://www.regulations.gov,
your e-mail 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
http://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 http://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 legal holidays. We
recommend that you telephone Kathleen D'Agostino, Environmental
Engineer, at (312) 886-1767 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-1767, dagostino.kathleen@epa.gov.

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

Table of Contents

I. What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Proposing To Take?
III. What Is the Background for These Actions?
A. What Is the General Background Information?
B. What Is the Impact of the December 22, 2006 United States
Court of Appeals Decision Regarding EPA's Phase 1 Implementation Rule?
IV. What Are the Criteria for Redesignation?
V. Why Is EPA Proposing To Take These Actions?
VI. What Is the Effect of These Actions?
VII. What is EPA's Analysis of the Request?
A. Attainment Determination and Redesignation
B. Adequacy of Wisconsin's MVEBs
VIII. What Action Is EPA Taking?
IX. 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--The 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 Action Is EPA Proposing To Take?

EPA is proposing to take several related actions. EPA is proposing
to make a determination that the Kewaunee County nonattainment area has
attained the 8-hour ozone standard and that this area has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA is thus proposing to approve Wisconsin's request to change the
legal designation of the Kewaunee County area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
Wisconsin's maintenance plan SIP revision for Kewaunee County (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to keep the Kewaunee County
area in attainment of the ozone NAAQS through 2018. Additionally, EPA
is proposing to approve the newly-established 2012 and 2018 MVEBs for
the Kewaunee County area. The adequacy comment period for the MVEBs
began on September 24, 2007, with EPA's posting of the availability of
the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/
stateresources/transconf/adequacy.htm). The adequacy comment period for
these MVEBs ended on October 24, 2007. EPA did not receive any requests
for this submittal, or adverse comments on this submittal during the
adequacy comment period. In a letter dated November 6, 2007, EPA
informed WDNR that we had found the 2012 and 2018 MVEBs to be adequate
for use in transportation conformity analyses. Please see the Adequacy
section of this rulemaking for further explanation on this process.
Therefore, we find adequate, and are proposing to approve, the State's
2012 and 2018 MVEBs for transportation conformity purposes.

III. What Is the Background for These Actions?

A. What Is the General Background Information?

Ground-level ozone is not emitted directly by sources. Rather,
emissions of nitrogen oxides (NO_X) and volatile organic
compounds (VOCs) react in the presence of sunlight to form ground-level
ozone. NO_X and VOCs are referred to as precursors of ozone.

[[Page 70257]]

The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the current 8-hour standard, the
ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR
56693 and 56852), the Kewaunee County area was designated as a moderate
nonattainment area under the 1-hour ozone NAAQS. The area was
subsequently redesignated to attainment of the 1-hour standard on
August 26, 1996 (61 FR 43668). At the time EPA revoked the 1-hour ozone
NAAQS, on June 15, 2005, the Kewaunee County area was designated as
attainment under the 1-hour ozone NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. On April 30, 2004 (69 FR 23857), EPA
published a final rule designating and classifying areas under the 8-
hour ozone NAAQS. These designations and classifications became
effective June 15, 2004. The CAA required EPA to designate as
nonattainment any area that was violating the 8-hour ozone NAAQS based
on the three most recent years of air quality data, 2001-2003.
The CAA contains two sets of provisions, subpart 1 and subpart 2,
that address planning and control requirements for nonattainment areas.
(Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for
nonattainment areas for any pollutant, including ozone, governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment areas.
Under EPA's 8-hour ozone implementation rule, (69 FR 23951 (April
30, 2004)), an area was classified under subpart 2 based on its 8-hour
ozone design value (i.e. the 3-year average annual fourth-highest daily
maximum 8-hour average ozone concentration), if it had a 1-hour design
value at the time of designation at or above 0.121 ppm (the lowest 1-
hour design value in Table 1 of subpart 2) (69 FR 23954). All other
areas were covered under subpart 1, based upon their 8-hour design
values (69 FR 23958). The Kewaunee County area was designated as a
subpart 1, 8-hour ozone nonattainment area by EPA on April 30, 2004 (69
FR 23857, 23947) based on air quality monitoring data from 2001-2003
(69 FR 23860).
40 CFR 50.10 and 40 CFR part 50, Appendix I provide that the 8-hour
ozone standard is attained when the 3-year average of the annual
fourth-highest daily maximum 8-hour average ozone concentration is less
than or equal to 0.08 ppm, when rounded. The data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90%, and no single year has less than
75% data completeness. See 40 CFR Part 50, Appendix I, 2.3(d).
On June 12, 2007, Wisconsin requested that EPA redesignate the
Kewaunee County area to attainment for the 8-hour ozone standard. The
redesignation request included three years of complete, quality-assured
data for the period of 2004 through 2006, indicating the 8-hour NAAQS
for ozone had been attained for the Kewaunee County area. Under the
CAA, nonattainment areas may be redesignated to attainment if
sufficient complete, quality-assured data are available for the
Administrator to determine that the area has attained the standard, and
the area meets the other CAA redesignation requirements in section
107(d)(3)(E).

B. What Is the Impact of the December 22, 2006 United States Court of
Appeals Decision Regarding EPA's Phase 1 Implementation Rule?

1. Summary of Court Decision
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On June
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No.
04 1201, in response to several petitions for rehearing, the DC Circuit
clarified that the Phase 1 Rule was vacated only with regard to those
parts of the rule that had been successfully challenged. Therefore, the
Phase 1 Rule provisions related to classifications for areas currently
classified under subpart 2 of Title I, part D, of the Act as 8-hour
nonattainment areas, the 8 hour attainment dates and the timing for
emissions reductions needed for attainment of the 8 hour ozone NAAQS
remain effective. The June 8 decision left intact the Court's rejection
of EPA's reasons for implementing the 8-hour standard in certain
nonattainment areas under subpart 1 in lieu of subpart 2. By limiting
the vacatur, the Court let stand EPA's revocation of the 1-hour
standard and those anti-backsliding provisions of the Phase 1 Rule that
had not been successfully challenged. The June 8 decision reaffirmed
the December 22, 2006 decision that EPA had improperly failed to retain
four measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New
Source Review (NSR) requirements based on an area's 1-hour
nonattainment classification; (2) Section 185 penalty fees for 1-hour
severe or extreme nonattainment areas; (3) measures to be implemented
pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the
contingency of an area not making reasonable further progress toward
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS;
and (4) certain transportation conformity requirements for certain
types of federal actions. The June 8 decision clarified that the
Court's reference to conformity requirements was limited to requiring
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations.
This section sets forth EPA's views on the potential effect of the
Court's rulings on this proposed redesignation action. For the reasons
set forth below, EPA does not believe that the Court's rulings alter
any requirements relevant to this redesignation action so as to
preclude redesignation or prevent EPA from proposing or ultimately
finalizing this redesignation. EPA believes that the Court's December
22, 2006 and June 8, 2007 decisions impose no impediment to moving
forward with redesignation of this area to attainment, because even in
light of the Court's decisions, redesignation is appropriate under the
relevant redesignation provisions of the CAA and longstanding policies
regarding redesignation requests.
2. Requirements Under the 8-Hour Standard
With respect to the 8-hour standard, the Court's ruling rejected
EPA's reasons for classifying areas under subpart 1 for the 8-hour
standard, and remanded that matter to the Agency. Consequently, it is
possible that this area could, during a remand to EPA, be reclassified
under subpart 2. Although any future decision by EPA to classify this
area under subpart 2 might trigger additional future requirements for
the area, EPA believes that this does not mean that redesignation
cannot now go forward. This belief is based upon: (1) EPA's
longstanding policy of evaluating requirements in accordance with the
requirements due at the time the request is submitted; and, (2)
consideration of the inequity of applying retroactively any
requirements that might in the future be applied.
First, at the time the redesignation request was submitted, the
Kewaunee County area was classified under

[[Page 70258]]

subpart 1 and was obligated to meet only subpart 1 requirements. Under
EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA,
to qualify for redesignation, states requesting redesignation to
attainment must meet only the relevant SIP requirements that came due
prior to the submittal of a complete redesignation request. September
4, 1992, Calcagni memorandum (``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' Memorandum from John Calcagni,
Director, Air Quality Management Division). See also Michael Shapiro
Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7,
1995) (Redesignation of Detroit-Ann Arbor). See Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, e.g.
also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The DC Circuit has recognized the inequity in such
retroactive rulemaking. In Sierra Club v. Whitman, 285 F. 3d 63 (DC
Cir. 2002), the DC Circuit upheld a District Court's ruling refusing to
make retroactive an EPA determination of nonattainment that was past
the statutory due date. Such a determination would have resulted in the
imposition of additional requirements on the area. The Court stated:
``Although EPA failed to make the nonattainment determination within
the statutory time frame, Sierra Club's proposed solution only makes
the situation worse. Retroactive relief would likely impose large costs
on the States, which would face fines and suits for not implementing
air pollution prevention plans in 1997, even though they were not on
notice at the time.'' Id. at 68. Similarly here it would be unfair to
penalize the area by applying to it for purposes of redesignation
additional SIP requirements under subpart 2 that were not in effect at
the time it submitted its redesignation request.
3. Requirements Under the 1-Hour Standard
With respect to the 1-hour standard requirements, the Kewaunee
County area was an attainment area subject to a CAA section 175A
maintenance plan under the 1-hour standard. The DC Circuit's decisions
do not impact redesignation requests for these types of areas, except
to the extent that the Court in its June 8 decision clarified that for
those areas with 1-hour motor vehicle emissions budgets in their
maintenance plans, anti-backsliding requires that those 1-hour budgets
must be used for 8-hour conformity determinations until replaced by 8-
hour budgets. To meet this requirement, conformity determinations in
such areas must comply with the applicable requrements of EPA's
conformity regulations at 40 CFR Part 93.
With respect to the three other anti-backsliding provisions for the
1-hour standard that the Court found were not properly retained, the
Kewaunee County area is an attainment area subject to a maintenance
plan for the 1-hour standard, and the NSR, contingency measure
(pursuant to section 172(c)(9) or 182(c)(9)) and fee provision
requirements no longer apply to an area that has been redesignated to
attainment of the 1-hour standard.
Thus, the decision in South Coast Air Quality Management Dist.
should not alter requirements that would preclude EPA from finalizing
the redesignation of this area.

IV. What Are the Criteria for Redesignation?

The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) allows for
redesignation provided that: (1) The Administrator determines that the
area has attained the applicable NAAQS; (2) the Administrator has fully
approved the applicable implementation plan for the area under section
110(k); (3) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable SIP and applicable
federal air pollutant control regulations and other permanent and
enforceable reductions; (4) the Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175A; and, (5) the state containing such area has met all requirements
applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:

``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum from
William G. Laxton, Director Technical Support Division, June 18, 1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T.
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
``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 H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting
Director, Air Quality Management Division, to Air Division Directors,
Regions 1-10, dated November 30, 1993.
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.

[[Page 70259]]

V. Why Is EPA Proposing To Take These Actions?

On June 12, 2007, Wisconsin requested redesignation of the Kewaunee
County area to attainment for the 8-hour ozone standard. EPA believes
that the area has attained the standard and has met the requirements
for redesignation set forth in section 107(d)(3)(E) of the CAA.

VI. What Is the Effect of These Actions?

Approval of the redesignation request would change the official
designation of the area for the 8-hour ozone NAAQS found at 40 CFR part
81. It would also incorporate into the Wisconsin SIP a plan for
maintaining the 8-hour ozone NAAQS through 2018. The maintenance plan
includes contingency measures to remedy future violations of the 8-hour
NAAQS. It also establishes MVEBs of 0.43 and 0.32 tons per day (tpd) VOC
and 0.80 and 0.47 tpd NO_X for the years 2012 and 2018, respectively.

VII. What Is EPA's Analysis of the Request?

A. Attainment Determination and Redesignation

EPA is proposing to make a determination that the Kewaunee County
area has attained the 8-hour ozone standard and that the area has met
all other applicable section 107(d)(3)(E) redesignation criteria. The
basis for EPA's determination is as follows:
1. The Area Has Attained the 8-Hour Ozone NAAQS (Section
107(d)(3)(E)(i))
EPA is proposing to make a determination that the Kewaunee County
area has attained the 8-hour ozone NAAQS. For ozone, an area may be
considered to be attaining the 8-hour ozone NAAQS if there are no
violations, as determined in accordance with 40 CFR 50.10 and part 50,
Appendix I, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain this standard,
the 3-year average of the fourth-highest daily maximum 8-hour average
ozone concentrations measured at each monitor within an area over each
year must not exceed 0.08 ppm. Based on the rounding convention
described in 40 CFR part 50, Appendix I, the standard is attained if
the design value is 0.084 ppm or below. The data must be collected and
quality-assured in accordance with 40 CFR part 58, and recorded in the
Aerometric Information Retrieval System (AIRS). The monitors generally
should have remained at the same location for the duration of the
monitoring period required for demonstrating attainment.
WDNR submitted ozone monitoring data for the 2004 to 2006 ozone
seasons. The WDNR quality-assured the ambient monitoring in accordance
with 40 CFR 58.10, and recorded it in the AIRS database, thus making
the data publicly available. The data meet the completeness criteria in
40 CFR 50, Appendix I, which requires a minimum completeness of 75
percent annually and 90 percent over each three year period.
Preliminary 2007 monitoring data show that the area continues to meet
the 8-hour ozone NAAQS. Monitoring data is presented in Table 1 below.

Table 1.--Kewaunee County Annual 4th High Daily Maximum 8-Hour Ozone Concentrations and 3-Year Average of 4th
High Daily Maximum 8-Hour Ozone Concentrations.
----------------------------------------------------------------------------------------------------------------
2004-2006
2004 4th 2005 4th 2006 4th average
Monitor high high high 4th high
(ppm) (ppm) (ppm) (ppm)
----------------------------------------------------------------------------------------------------------------
55-061-0002....................................................... 0.073 0.088 0.077 0.079
----------------------------------------------------------------------------------------------------------------

In addition, as discussed below with respect to the maintenance
plans, WDNR has committed to continue monitoring ozone levels in
Kewaunee County and to discuss with EPA any changes in the siting that
may become necessary. WDNR will continue to quality assure monitoring
data in accordance with 40 CFR part 58 and enter all data into the Air
Quality System on a timely basis in accordance with federal guidelines.
In summary, EPA believes that the data submitted by Wisconsin provide
an adequate demonstration that the Kewaunee County area has attained
the 8-hour ozone NAAQS.
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 has met all currently applicable
SIP requirements for purposes of redesignation for the Kewaunee County
area under Section 110 of the CAA (general SIP requirements). We have
also determined that the Wisconsin SIP meets all SIP requirements
currently applicable for purposes of redesignation under part D of
Title I of the CAA (requirements specific to subpart 1 nonattainment
areas), in accordance with section 107(d)(3)(E)(v). In addition, we
have determined that the Wisconsin SIP is fully approved with respect
to all applicable requirements for purposes of redesignation, in
accordance with section 107(d)(3)(E)(ii). In making these
determinations, we have ascertained what SIP requirements are
applicable to the area for purposes of redesignation, and have
determined that the portions of the SIP meeting these requirements are
fully approved under section 110(k) of the CAA. As discussed more fully
below, SIPs must be fully approved only with respect to currently
applicable requirements of the CAA.
a. The Kewaunee County Area Has Met All Applicable Requirements Under
Section 110 and Part D of the CAA
The September 4, 1992 Calcagni memorandum (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) of the CAA. Under this interpretation, a state and the
area it wishes to redesignate must meet the relevant CAA requirements
that are due prior to the state's submittal of a complete redesignation
request for the area. See also the September 17, 1993 Michael Shapiro
memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS).
Applicable requirements of the CAA that come due subsequent to the
state's submittal of a complete request remain applicable

[[Page 70260]]

until a redesignation to attainment is approved, but are not required
as a prerequisite to redesignation. See section 175A(c) of the CAA.
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424,
25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis
area to attainment of the 1-hour ozone NAAQS).
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
that, among other things, it includes enforceable emission limitations
and other control measures, means or techniques necessary to meet the
requirements of the CAA; provides for establishment and operation of
appropriate devices, methods, systems and procedures necessary to
monitor ambient air quality; provides for implementation of a source
permit program to regulate the modification and construction of any
stationary source within the areas covered by the plan; includes
provisions for the implementation of part C, Prevention of Significant
Deterioration (PSD) and part D, NSR permit programs; includes criteria
for stationary source emission control measures, monitoring, and
reporting; includes provisions for air quality modeling; and provides
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. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants (NO_X SIP Call,\1\ Clean Air Interstate Rule
(CAIR) (70 FR 25162)). However, the section 110(a)(2)(D) requirements
for a state are not linked with a particular nonattainment area's
designation and classification. EPA believes that the requirements
linked with a particular nonattainment area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. When the transport SIP submittal requirements
are applicable to a state, they will continue to apply to the state
regardless of the attainment designation of any one particular area in
the state. Therefore, we believe that these requirements should not be
construed to be applicable requirements for purposes of redesignation.
Further, we believe that 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. We
conclude that only the section 110 and part D requirements which are
linked with a particular area's designation and classification are the
relevant measures which 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), (62 FR 24826, May 7, 1997);
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 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 ozone
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh ozone
redesignation (66 FR 50399, October 19, 2001).
---------------------------------------------------------------------------

\1\ On October 27, 1998 (63 FR 57356), EPA issued a
NO_X SIP call requiring the District of Columbia and 22
states to reduce emissions of NO_X in order to reduce the
transport of ozone and ozone precursors. Wisconsin was not included
in EPA's NO_X SIP call.
---------------------------------------------------------------------------

As discussed above, we believe that section 110 elements which are
not linked to the area's nonattainment status are not applicable for
purposes of redesignation. Because there are no section 110
requirements linked to the part D requirements for 8-hour ozone
nonattainment areas that have become due, as explained below, there are
no part D requirements applicable for purposes of redesignation under
the 8-hour standard.
Part D Requirements. EPA has determined that the Wisconsin SIP
meets applicable SIP requirements under part D of the CAA, since no
requirements applicable for purposes of redesignation became due for
the 8-hour ozone standard prior to WDNR's submission of the
redesignation request for the Kewaunee County area. Under part D, an
area's classification determines the requirements to which it will be
subject. Subpart 1 of part D, found in sections 172-176 of the CAA,
sets forth the basic nonattainment requirements applicable to all
nonattainment areas. Section 182 of the CAA, found in subpart 2 of part
D, establishes additional specific requirements depending on the area's
nonattainment classification. The Kewaunee County area was classified
as a subpart 1 nonattainment area, and, therefore, subpart 2
requirements do not apply.
Part D, subpart 1 applicable SIP requirements. For purposes of
evaluating these redesignation requests, the applicable part D, subpart
1 SIP requirements for the Kewaunee County area are contained in
sections 172(c)(1)-(9). 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).
No requirements applicable for purposes of redesignation under part
D became due prior to submission of the redesignation request, and,
therefore, none are applicable to the areas for purposes of
redesignation. Since the State of Wisconsin has submitted a complete
ozone redesignation request for the Kewaunee County area prior to the
deadline for any submissions required for purposes of redesignation, we
have determined that these requirements do not apply to the Kewaunee
County area for purposes of redesignation.
Furthermore, EPA has determined that, since PSD requirements will
apply after redesignation, areas being redesignated need not comply
with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
NAAQS without part D NSR. A more 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.'' Wisconsin has demonstrated that the area to be
redesignated will be able to maintain the standard without part D NSR
in effect; therefore, EPA concludes that 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 Kewaunee County 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 176 conformity requirements. Section 176(c) of the CAA
requires states to establish criteria and

[[Page 70261]]

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). State conformity revisions
must be consistent with federal conformity regulations relating to
consultation, enforcement and enforceability, which EPA promulgated
pursuant to CAA requirements.
EPA believes that it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) for two reasons. First, 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. Second, EPA's federal conformity rules require the
performance of conformity analyses in the absence of federally-approved
state rules. Therefore, because areas are subject to the conformity
requirements regardless of whether they are redesignated to attainment
and, because they must implement conformity under federal rules if
state rules are not yet approved, EPA believes 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 has submitted onroad motor vehicle budgets for
the Kewaunee County area of 0.43 and 0.32 tpd VOC and 0.80 and 0.47 tpd
NO_X for the years 2012 and 2018, respectively. The area must
use the MVEBs from the maintenance plan in any conformity determination
that is effective on or after the effective date of the maintenance
plan approval. Thus, the Kewaunee County area has satisfied all
applicable requirements under section 110 and part D of the CAA.
b. The Kewaunee County Area Has a Fully Approved Applicable SIP Under
Section 110(k) of the CAA
EPA has fully approved the Wisconsin SIP for the Kewaunee County
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 the September 4, 1992 John
Calcagni memorandum, page 3, Southwestern Pennsylvania Growth Alliance
v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), Wall v. EPA, 265
F.3d 426 (6th Cir. 2001)) 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 the
various required SIP elements applicable to the Kewaunee County area
under the 1-hour ozone standard. No Kewaunee County 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 Kewaunee County 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 demonstration, the State has calculated the change
in emissions between 2002, one of the years used to designate the area
as nonattainment, and 2005, one of the years the Kewaunee County 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 Kewaunee County and upwind
areas have implemented in recent years. The Kewaunee County area is
impacted by the transport of ozone and ozone precursors from upwind
areas. Therefore, local controls as well as controls implemented in
upwind areas are relevant to the improvement in air quality in the
Kewaunee County area.
a. Permanent and Enforceable Controls Implemented
The following is a discussion of permanent and enforceable measures
that have been implemented in the areas:
NO_X rules. Wisconsin adopted NO_X controls for large
existing sources and established emissions standards for new sources as
part of their rate of progress plan under the 1-hour ozone standard.
Federal Emission Control Measures. Reductions in VOC and
NO_X emissions have occurred statewide and in upwind areas as
a result of federal emission control measures, with additional emission
reductions expected to occur in the future. Federal emission control
measures include: Maximum Achievable Control Technology Standards, the
National Low Emission Vehicle (NLEV) program, Tier 2 emission standards
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards,
and heavy-duty diesel engine standards. In addition, in 2004, EPA
issued the Clean Air Non-road Diesel Rule (69 FR 38958 (July 29,
2004)). EPA expects this rule to reduce off-road diesel emissions
through 2010, with emission reductions starting in 2008.
Control Measures in Upwind Areas. On October 27, 1998 (63 FR
57356), EPA issued a NO_X SIP call requiring the District of
Columbia and 22 states to reduce emissions of NO_X. The
reduction in NO_X emissions has resulted in lower
concentrations of transported ozone entering the Kewaunee County area.
Emission reductions resulting from regulations developed in response to
the NO_X SIP call are permanent and enforceable.
b. Emission Reductions
Wisconsin is using 2002 for the nonattainment inventory and 2005,
one of the years used to demonstrate monitored attainment of the NAAQS,
for the attainment inventory. WDNR prepared comprehensive inventories
for both 2002 and 2005 for Kewaunee County as part of a larger
inventory effort. Point source inventories were developed using source
specific data. Area source emissions were estimated based on various
activity data compiled by the Census Bureau, the Energy Information
Administration, the Bureau of Economic Analysis, and several Wisconsin
State agencies. Nonroad mobile emissions were generated using EPA's
National Mobile Inventory Model (NMIM) and adding emissions estimates
for aircraft, commercial marine vessels, and railroads, three nonroad
categories not included in NMIM. Onroad mobile

[[Page 70262]]

emissions were calculated using MOBILE6.2.
Using the inventories described above, Wisconsin's submittal
documents changes in VOC and NO_X emissions from 2002 to 2005
for the Kewaunee County area. Because Kewaunee County is impacted by
transport, WDNR also documented emissions reductions for the upwind
Wisconsin areas of Milwaukee-Racine, Sheboygan, and Manitowoc County.
Emissions data are shown in Tables 3 through 5 below.

Table 3.--VOC and NOX Emissions for Nonattainment Year 2002 (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kewaunee County Milwaukee-Racine Sheboygan Manitowoc County Wisconsin upwind
-------------------------------------------------------------------------------- areas total
-------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point............................................... 0.3 0.05 14.7 114.9 2.5 26.1 1.6 2.9 18.8 143.9
Area................................................ 1.3 0.1 120.6 12.1 10.9 0.9 5.1 0.4 136.6 13.4
Nonroad............................................. 1.7 2.1 62.1 52.2 5.6 4.5 3.7 4.2 71.4 60.9
Onroad.............................................. 0.8 1.2 45.4 101.6 4.1 8.2 3.6 7.4 53.1 117.2
---------------------------------------------------------------------------------------------------
Total........................................... 4.1 3.5 242.8 280.8 23.1 39.7 14.0 14.9 279.9 335.4
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 4.--VOC and NOX Emissions for Attainment Year 2005 (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kewaunee County Milwaukee-Racine Sheboygan Manitowoc County Wisconsin upwind
-------------------------------------------------------------------------------- areas total
-------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point............................................... 0.2 0.01 13.8 68.6 2.3 13.2 1.3 3.2 17.4 85.0
Area................................................ 1.3 0.1 107.5 13.4 7.8 1.1 4.9 0.5 120.2 15.0
Nonroad............................................. 1.6 1.7 54.0 49.1 5.4 4.1 3.4 3.8 62.8 57.0
Onroad.............................................. 0.6 1.2 36.0 86.2 2.9 7.8 2.6 7.4 41.5 101.4
---------------------------------------------------------------------------------------------------
Total........................................... 3.7 3.0 211.3 217.3 18.4 26.2 12.2 14.9 241.9 258.4
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 5. Comparison of 2002 and 2005 VOC and NOX Emissions (tpd)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Kewaunee County Wisconsin upwind areas total
-----------------------------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX
Sector -----------------------------------------------------------------------------------------------------------------------------------
Net change Net change Net change Net change
2002 2005 (2002-2005) 2002 2005 (2002-2005) 2002 2005 (2002-2005) 2002 2005 (2002-2005)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Point....................................................... 0.3 0.2 -0.1 0.05 0.01 -0.04 18.8 17.4 -1.4 143.9 85.0 -58.9
Area........................................................ 1.3 1.3 0.0 0.1 0.1 0.0 136.6 120.2 -16.4 13.4 15.0 1.6
Nonroad..................................................... 1.7 1.6 -0.1 2.1 1.7 -0.4 71.4 62.8 -8.6 60.9 57.0 -3.9
Onroad...................................................... 0.8 0.6 -0.2 1.2 1.2 0.0 53.1 41.5 -11.6 117.2 101.4 -15.8
-----------------------------------------------------------------------------------------------------------------------------------
Total................................................... 4.1 3.7 -0.4 3.45 3.01 -0.4 279.9 241.9 -38.0 335.4 258.4 -77.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Table 5 shows that the Kewaunee County area reduced VOC emissions
by 0.4 tpd and NO_X emissions by 0.4 tpd between 2002 and
2005. In addition, upwind areas in Wisconsin reduced VOC emissions by
38.0 tpd and NO_X emissions by 77.0 tpd between 2002 and
2005. Based on the information summarized above, Wisconsin has
adequately demonstrated that the improvement in air quality is due to
permanent and enforceable emissions reductions.
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 its request to redesignate the Kewaunee County
nonattainment area to attainment status, Wisconsin submitted a SIP
revision to provide for the maintenance of the 8-hour ozone NAAQS in
the area through 2018.
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 the
Administrator approves a redesignation to attainment. Eight years after
the 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 8-hour ozone
violations.
The September 4, 1992, John Calcagni memorandum provides additional
guidance on the content of a

[[Page 70263]]

maintenance plan. The memorandum clarifies that an ozone maintenance
plan should address the following items: The attainment VOC and
NO_X 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 WDNR developed an emissions inventory for 2005, one of the
years Wisconsin used to demonstrate monitored attainment of the 8-hour
NAAQS, as described above. The attainment level of emissions is
summarized in Table 4, above.
c. Demonstration of Maintenance
Wisconsin submitted with the redesignation request a revision to
the 8-hour ozone SIP to include a maintenance plan for the Kewaunee
County area, in compliance with section 175A of the CAA. This
demonstration shows maintenance of the 8-hour ozone standard through
2018 by assuring that current and future emissions of VOC and
NO_X for the Kewaunee County 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).
Wisconsin is using projected emissions inventories for the years
2012 and 2018 to demonstrate maintenance. Point and area source
emissions were projected from the 2005 base year using growth factors.
Nonroad mobile emissions were generated for 2012 and 2018 using NMIM
and grown emissions for aircraft, commercial marine vessels, and
railroads were added in. Onroad mobile source emissions projections
were created using MOBILE6.2. Emissions estimates are presented in
Table 6 below.

Table 6.--Kewaunee County: Comparison of 2005-2018 VOC and NOX Emissions (tpd)
----------------------------------------------------------------------------------------------------------------
VOC NOX
---------------------------------------------------------------------------------
Sector Net Net
2005 2012 2018 change 2005 2012 2018 change
2005-2018 2005-2018
----------------------------------------------------------------------------------------------------------------
Point......................... 0.2 0.3 0.3 0.10 0.01 0.01 0.0 -0.01
Area.......................... 1.3 1.4 1.3 0.00 0.1 0.1 0.1 0.00
Nonroad....................... 1.6 1.3 1.2 -0.40 1.7 1.5 1.4 -0.30
Onroad........................ 0.6 0.43 0.32 -0.28 1.2 0.80 0.47 -0.73
---------------------------------------------------------------------------------
Total..................... 3.7 3.43 3.12 -0.58 3.01 2.41 1.97 -1.04
----------------------------------------------------------------------------------------------------------------

The emission projections show that WDNR does not expect emissions
in the Kewaunee County area to exceed the level of the 2005 attainment
year inventory during the maintenance period. In the Kewaunee County
area, WDNR projects that VOC and NO_X emissions will decrease
by 0.58 tpd and 1.04 tpd, respectively.
As part of its maintenance plan, the State elected to include a
``safety margin'' for the area. A ``safety margin'' is the difference
between the attainment level of emissions (from all sources) and the
projected level of emissions (from all sources) in the maintenance plan
which continues to demonstrate attainment of the standard. The
attainment level of emissions is the level of emissions during one of
the years in which the area met the NAAQS. The Kewaunee County area
attained the 8-hour ozone NAAQS during the 2004-2006 time period.
Wisconsin used 2005 as the attainment level of emissions for the area.
In the maintenance plan, WDNR projected emission levels for 2018. For
Kewaunee County, the emissions from point, area, nonroad, and mobile
sources in 2005 equaled 3.7 tpd of VOC. WDNR projected VOC emissions
for the year 2018 to be 3.12 tpd of VOC. The SIP submission
demonstrates that the Kewaunee County area will continue to maintain
the standard with emissions at this level. The safety margin for VOC is
calculated to be the difference between these amounts or, in this case,
0.58 tpd of VOC for 2018. By this same method, 1.04 tpd (i.e., 3.01 tpd
less 2.41 tpd) is the safety margin for NO_X for 2018. The
safety margin, or a portion thereof, can be allocated to any of the
source categories, as long as the total attainment level of emissions
is maintained.
d. Monitoring Network
Wisconsin currently operates one ozone monitor in Kewaunee County.
Wisconsin has committed to continue to operate and maintain an approved
ozone monitoring network in Kewaunee. WDNR has also committed to
consult with EPA regarding any changes in siting that may become
necessary in the future. WDNR will continue to quality assure
monitoring data in accordance with 40 CFR part 58 and enter all data
into the Air Quality System on a timely basis in accordance with
federal guidelines.
e. Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the Kewaunee County 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 8-hour standard in the
Kewaunee County area consists of plans to continue ambient ozone
monitoring in accordance with the requirements of 40 CFR part 58. The
State will also evaluate future VOC and NO_X emissions
inventories for increases over 2005 levels.
f. 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

[[Page 70264]]

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 Kewaunee area to address possible future ozone
air quality problems. A contingency plan response will be triggered
whenever a three-year average fourth-high monitored value of 0.085 ppm
or greater is monitored within the maintenance area. When a response is
triggered, WDNR will determine whether a special event, malfunction, or
non-compliance with permit conditions or rule requirements resulted in
high ozone concentrations in order to immediately address needed
corrective measures. The WDNR will also review meteorological
conditions during high ozone episodes. The State will conduct this
review within 6 months following the close of the ozone season. If the
high values were found not to be prompted by an exceptional event,
malfunction, or non-compliance with a permit condition or rule
requirement, WDNR will evaluate existing but not fully implemented, on-
the way, and, if necessary, new control measures necessary to return
the area to attainment within 18 months. EPA is interpreting this
commitment to mean that the measure will be in place within 18 months.
In addition, it is EPA's understanding that to acceptably address a
violation of the standard, existing and on-the way control measures
must be in excess of emissions reductions included in the projected
maintenance inventories.
In its maintenance plan, WDNR included the following list of
potential contingency measures:
i. Broaden the application of the NO_X RACT program by
including a larger geographic area, and/or including sources with
potential emissions of 50 tons per year, and/or increasing the cost-
effectiveness thresholds utilized as a basis for Wisconsin's
NO_X RACT Program; and/or
ii. Broaden the geographic area for the idling control program for
mobile sources targeting diesel vehicles; and/or
iii. Reduced VOC content in Architectural, Industrial and
Maintenance coatings rule; and/or
iv. Reduced VOC content in commercial and consumer products; and/or
v. Reduced VOC content from federal motor vehicle toxics rule; and/
or
Control measures identified as RACM in a regional attainment
demonstration for ozone control.
g. Provisions for Future Updates of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, Wisconsin commits to
submit to the EPA updated ozone maintenance plans eight years after
redesignation of the Kewaunee County area to cover an additional 10-
year period beyond the initial 10-year maintenance period. As required
by section 175(A) of the CAA, Wisconsin has committed to maintaining
the existing controls after redesignation unless the State demonstrates
that the standard can be maintained without one or more controls.
Wisconsin also commits that any changes to its rules or emission limits
applicable to VOC and/or NO_X sources, as required for
maintenance of the ozone standard in the Kewaunee County area as well
as contingency measures adopted under the section 175A maintenance
plan, will be submitted to EPA for approval as a SIP revision.
Wisconsin has also asserted that the WDNR has the necessary resources
to actively enforce any violations of its rules or permit provisions.
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. The maintenance plan SIP
revision submitted by Wisconsin for the Kewaunee County area meets the
requirements of section 175A of the CAA.

B. Adequacy of Wisconsin's MVEBs

Under the CAA, states are required to submit, at various times,
control strategy SIP revisions and ozone maintenance plans for ozone
nonattainment areas and for areas seeking redesignations to attainment
of the ozone standard. These emission control strategy SIP revisions
(e.g., reasonable further progress SIP and attainment demonstration SIP
revisions) and ozone maintenance plans create MVEBs based on onroad
mobile source emissions for criteria pollutants and/or their precursors
to address pollution from cars and trucks. 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 or maintenance.
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). The preamble also describes how to establish the MVEB in the
SIP and how to revise the MVEB if needed.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the SIP that addresses emissions from cars
and trucks. 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. If a
transportation plan 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 that the MVEBs are ``adequate'' for use in
determining transportation conformity. Once EPA affirmatively finds the
submitted MVEBs to be adequate for transportation conformity purposes,
the MVEBs are used by state and federal agencies in determining whether
proposed transportation projects 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).
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's finding of adequacy. The process
of determining the adequacy of submitted SIP MVEBs was initially
outlined in EPA's May 14, 1999 guidance, ``Conformity Guidance on
Implementation of March 2, 1999, Conformity Court Decision.'' This
guidance was codified in the Transportation Conformity Rule Amendments
for the ``New 8-Hour Ozone and PM 2.5 National Ambient

[[Page 70265]]

Air Quality Standards and Miscellaneous Revisions for Existing Areas;
Transportation Conformity Rule Amendments--Response to Court Decision
and Additional Rule Change,'' published on July 1, 2004 (69 FR 40004).
EPA follows this guidance and rulemaking in making its adequacy
determinations.
The Kewaunee County area's maintenance plan contains new VOC and
NO_X MVEBs for the years 2012 and 2018. The availability of
the SIP submission with these 2012 and 2018 MVEBs was announced for
public comment on EPA's Adequacy Web page on September 24, 2007 at:
http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA
public comment period on adequacy of the 2012 and 2018 MVEBs for the
Kewaunee County area closed on October 24, 2007. No requests for this
submittal or adverse comments on the submittal were received during the
adequacy comment period. In a letter dated November 6, 2007, EPA
informed WDNR that we had found the 2012 and 2018 MVEBs to be adequate
for use in transportation conformity analyses.
EPA, through this rulemaking, is proposing to approve the MVEBs for
use to determine transportation conformity in the Kewaunee County area
because EPA has determined that the area can maintain attainment of the
8-hour ozone NAAQS for the relevant maintenance period with mobile
source emissions at the levels of the MVEBs. WDNR has determined the
2012 MVEBs for the Kewaunee County area to be 0.43 tpd for VOC and 0.80
tpd for NO_X. WDNR has determined the 2018 MVEBs for the area
to be 0.32 tpd for VOC and 0.47 tpd for NO_X. These MVEBs are
consistent with the onroad mobile source VOC and NO_X
emissions projected by MDEQ for 2012 and 2018, as summarized in Table 6
above (``onroad'' source sector). Wisconsin has demonstrated that the
Kewaunee County area can maintain the 8-hour ozone NAAQS with mobile
source emissions of 0.43 tpd and 0.32 tpd of VOC and 0.80 tpd and 0.47
tpd of NO_X in 2012 and 2018, respectively, since emissions
will remain under attainment year emission levels.

VIII. What Action Is EPA Taking?

EPA is proposing to make a determination that the Keweaunee County
area has attained the 8-hour ozone NAAQS. EPA is also proposing to
approve the maintenance plan SIP revision for the Kewaunee County area.
EPA's proposed approval of the maintenance plan is based on Wisconsin's
demonstration that the plan meets the requirements of section 175A of
the CAA, as described more fully above. After evaluating Wisconsin's
redesignation request, EPA has determined that it meets the
redesignation criteria set forth in section 107(d)(3)(E) of the CAA.
Therefore, EPA is proposing to approve the redesignation of the
Kewaunee County area from nonattainment to attainment for the 8-hour
ozone NAAQS. The final approval of this redesignation request would
change the official designation for the Kewaunee County area from
nonattainment to attainment for the 8-hour ozone standard. Finally, EPA
is proposing to approve the 2012 and 2018 MVEBs submitted by Wisconsin
in conjunction with the redesignation request.

IX. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, September 30, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501, et seq.).

Regulatory Flexibility Act

This proposed action merely proposes to approve state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. Redesignation of an area to
attainment under section 107(d)(3)(E) of the CAA does not impose any
new requirements on small entities. Redesignation is an action that
affects the status of a geographical area and does not impose any new
regulatory requirements on sources. Accordingly, the Administrator
certifies that this rule will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601, et seq.).

Unfunded Mandates Reform Act

Because this rule proposes to approve pre-existing requirements
under state law, and does not impose any additional enforceable duty
beyond that required by state law, it does not contain any unfunded
mandate or significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132: Federalism

This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). Redesignation is an action that merely affects the status of
a geographical area, does not impose any new requirements on sources,
or allows a state to avoid adopting or implementing other requirements,
and does not alter the relationship or the distribution of power and
responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments

This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the federal government and Indian
tribes, or on the distribution of power and responsibilities between
the federal government and Indian tribes, as specified by Executive
Order 13175 (59 FR 22951, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks

This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use

Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use
technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impracticable. In
reviewing program

[[Page 70266]]

submissions, EPA's role is to approve state choices, provided that they
meet the criteria of the CAA. Absent a prior existing requirement for
the state to use voluntary consensus standards, EPA has no authority to
disapprove a program submission for failure to use such standards, and
it would thus be inconsistent with applicable law for EPA to use
voluntary consensus standards in place of a program submission that
otherwise satisfies the provisions of the Act. Redesignation is an
action that affects the status of a geographical area but does not
impose any new requirements on sources. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply.

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

Air Pollution Control, Environmental protection, National parks,
Wilderness areas.

Dated: November 29, 2007.
Walter W. Kovalick,
Acting Regional Administrator, Region 5.
[FR Doc. E7-23949 Filed 12-10-07; 8:45 am]
BILLING CODE 6560-50-P

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

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