Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[WI70-02-7299 and WI71-02-7300; FRL-5553-1]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; State of Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On June 5, 1996, and June 11, 1996, the Environmental

Protection Agency (EPA) published a proposal to approve the

redesignations to attainment and associated maintenance plans for the

ozone National Ambient Air Quality Standard (NAAQS) for the Wisconsin

counties of Walworth, and Kewaunee, Manitowoc, and Sheboygan,

respectively. The 30-day comment periods concluded on July 5, 1996, for

Walworth County and on July 11, 1996 for the remaining three counties.

Two comment letters were received in response to the proposed

rulemakings, both from the Citizens Commission for Clean Air in the

Lake Michigan Basin. This final rule summarizes all comments and EPA's

responses, and finalizes the approval of the redesignations to

attainment for ozone and associated maintenance plans for Walworth,

Sheboygan, and Kewaunee Counties. Manitowoc County is not being

finalized at this time due to a possible monitored exceedance of the

ozone standard in that county. The monitored exceedance, as yet, has

not been subject to the standard quality assurance procedures. If the

exceedance is validated, it would be the fourth exceedance over the

past three years and would therefore constitute a violation at the

Manitowoc County Woodland Dunes monitor.

EFFECTIVE DATE: This action will be effective August 26, 1996.

ADDRESSES: Copies of the SIP revisions, public comments and EPA's

responses are available for inspection at the following address: (It is

recommended that you telephone Randy Robinson at (312) 353-6713 before

visiting the Region 5 Office.) United States Environmental Protection

Agency, Region 5, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Randy Robinson, Regulation Development

Section (AR-18J), Air Programs Branch, Air and Radiation Division,

United States Environmental Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312) 353-

6713.

SUPPLEMENTARY INFORMATION:

I. Background Information

The redesignation requests and maintenance plans for the Walworth

County marginal nonattainment area and the Kewaunee, Manitowoc, and

Sheboygan Counties moderate ozone nonattainment areas discussed in this

final rule were submitted to EPA by the WDNR on December 15, 1995, and

May 15, 1996, respectively. On June 5, 1996, the EPA published in the

Federal Register a proposal to approve the redesignation request and

associated section 175A maintenance plan for Walworth County as a

revision to the Wisconsin ozone SIP (61 FR 28541). The proposed

approval of the Kewaunee, Sheboygan, and Manitowoc Counties

redesignation requests and maintenance plans was published on June 11,

1996 (61 FR 29508). Comments were received regarding the proposed

rulemakings. Additionally, preliminary exceedances of the ozone

National Ambient Air Quality Standard (NAAQS) were monitored in

Manitowoc County during the 30 day comment period. If these exceedances

are validated, it would mean that Manitowoc County is in violation.

Consequently, EPA is not taking final action on the request for

redesignation to attainment and maintenance plan for Manitowoc County

at this time. The EPA will continue to work with the State to address

the Manitowoc situation. This notice does not, therefore, further

discuss the Manitowoc redesignation action.

The final rule contained in this document addresses the comments

which were received during the public comment period and announces

EPA's final action regarding the redesignations and section 175A

maintenance plans for Walworth, Kewaunee, and Sheboygan Counties.

II. Public Comments and EPA Responses and Final Rulemaking Actions

The following discussion summarizes and responds to the comments

received regarding the proposed redesignations to attainment for

Walworth, Kewaunee, and Sheboygan Counties. Walworth County was

proposed in a separate rulemaking from Kewaunee and Sheboygan Counties.

A set of comments was received for Walworth County on July 5, 1996. A

set of comments was received for Kewaunee and Sheboygan Counties on

July 11, 1996. However, the bulk of the comments dealt with matters

common to both rulemakings. The first part of this section addresses

these common comments. The second part will address comments pertaining

to a specific area.

Comment: The commentor states that redesignating the counties of

Walworth, Kewaunee, and Sheboygan to attainment for ozone is

``inappropriate without additional safeguards''. The commentor

primarily singles out the contingency plan as inadequate to address

future ozone violations caused by emissions from upwind areas.

Response: Section 107(3)(d)(E) of the Clean Air Act (Act) sets out

the criteria which must be met before an area can be redesignated to

attainment. These

[[Page 43669]]

criteria are: (i) The Administrator determines that the area has

attained the NAAQS; (ii) the Administrator has fully approved the

applicable implementation plan for the area under section 110(k); (iii)

the Administrator determines that the improvement in air quality is due

to permanent and enforceable reductions in emissions resulting from

implementation of the applicable implementation plan and applicable

Federal air pollutant control regulations and other permanent and

enforceable reductions; (iv) the Administrator has fully approved a

maintenance plan for the area as meeting the requirements of section

175A; and (v) the State containing such area has met all requirements

applicable to the area under section 110 and part D. It is appropriate

to redesignate the counties of Walworth, Sheboygan, and Kewaunee to

attainment for ozone because EPA has determined that they meet the

specific criteria and are therefore eligible for redesignation to

attainment.

As mentioned above, the first criterion requires that the area has

attained the NAAQS. If a violation of the NAAQS does occur after the

redesignation of an area to attainment, section 175A(d) of the Act

requires that the State Implementation Plan for the area contain

contingency provisions which would promptly correct the violation. The

mechanism that would trigger the implementation of contingency measures

in each of the three Wisconsin counties is a monitored violation of the

NAAQS determined to be caused by local sources. The EPA believes that

this triggering mechanism is appropriate given the overwhelming

evidence demonstrating that Walworth, Sheboygan and Kewaunee Counties

are the recipients of transported ozone and ozone precursors from

upwind areas, such as the Milwaukee-Racine and Chicago-Gary areas. The

EPA believes that this triggering mechanism satisfies the requirement

of section 175A(d), because if a violation is due to transport, then

control measures implemented in the violating area will not correct the

violation, which is the stated purpose of the section 175(A)(d)

contingency provisions.

If violations of the ozone NAAQS are monitored in the redesignated

counties, current evidence indicates that emission reductions will

likely be needed from upwind areas in order for the violation to be

corrected. The upwind areas of immediate concern are the Milwaukee-

Racine and Chicago-Gary severe-17 nonattainment areas. It is reasonable

to consider the current and future emission reductions that will occur

in these upwind areas, as measures that will reduce future ozone

concentrations in the immediate nonattainment areas as well as in areas

downwind. The severe-17 nonattainment areas have attainment dates of

2007. As a result of this classification, the areas will have to

achieve significant reductions in ozone precursor emissions prior to

the area's attainment date, as part of the States' obligations to

comply with the rate-of-progress requirements of section 182(c)(2).

Many of the reductions have already occurred or will occur well before

the year 2007. The EPA considers these requisite reduction measures to

effectively address any future elevated concentrations of ozone in the

downwind counties of Kewaunee, Sheboygan and Walworth, attributable to

transport from the Milwaukee and Chicago areas. These Act measures are

mandatory and have been or will be implemented in accordance with a

schedule that ensures that the severe-17 nonattainment areas achieve

continuous progress toward attainment. Also, the 15 percent plan, which

has been approved for the Wisconsin ozone nonattainment areas (61 FR

11735), contains contingency measures that would provide reductions in

the event that the State is unable to show a 15 percent reduction in

VOC's, from the year 1990 to 1996, in the nonattainment areas. The EPA

believes it appropriate to consider these measures (those needed to

comply with the rate-of-progress provisions and the section 172(c)(9)

contingency measures) to be contingency measures under section 175A(d)

for the Wisconsin counties being redesignated since they should serve

to correct any violations attributable to transport and either are or

are required to be included in the Wisconsin SIP. In essence, locally

caused violations will be dealt with through locally implemented

contingency measures while transport caused violations would be dealt

with through control measures being implemented in upwind areas.

Additionally, reductions of emissions from upwind sources will likely

be implemented as a result of the work currently being done by the

Ozone Transport Assessment Group. This group, made up of State and

Federal environmental agencies, environmental groups, and industry, is

charged with evaluating and recommending regional control strategies

that will help reduce the amount of transported ozone and precursors.

The EPA intends to use its regulatory authority to ensure

implementation of these control strategies. The reductions resulting

from these strategies will assist urban areas in their efforts to

demonstrate attainment as well as to lower the concentration of ozone

found in more rural areas, such as the three Wisconsin counties.

Comment: The commentor states that EPA is not enforcing existing

prohibitions against interstate pollution. The commentor elaborates by

citing section 110(a)(2)(D) and section 126 as Act provisions giving

EPA the authority to demand emission reductions from States

contributing to nonattainment in downwind areas. Section

110(a)(2)(D)(I)(I) requires that the SIP ``contain adequate provisions

prohibiting, consistent with the provisions of this title, any source

or other type of emissions activity within the State from emitting any

air pollutant in amounts which will contribute significantly to

nonattainment in, or interfere with maintenance by, any other State

with respect to any such national primary or secondary ambient air

quality standard, * * * ''

Response: Nothing in section 110(a)(2)(D) prohibits EPA from

approving the redesignation requests for Walworth County or for

Kewaunee and Sheboygan Counties. Section 110(a)(2)(D) applies to the

Milwaukee-Chicago-Gary nonattainment areas. The SIP revisions that will

achieve the necessary reductions for these areas are still under

development. They are due to be submitted in mid-1997 (See March 2,

1995 Mary Nichols Memorandum) and will include local emission reduction

strategies as well as the regional control strategies implemented as a

result of the Ozone Transport Assessment Group process. The EPA will

evaluate these revisions for compliance with section 110(a)(2)(D) when

they are submitted.

Section 126 of the Act states that: ``Any State or political

subdivision may petition the Administrator for a finding that any major

source or group of stationary sources emits or would emit any air

pollutant in violation of the prohibition of section 7410(a)(2)(D)(ii)

of this title or this section. Within 60 days after receipt of any

petition under this subsection and after public hearing, the

Administrator shall make such a finding or deny the petition.'' Neither

the State of Wisconsin, nor any other State, has petitioned the EPA to

make a finding under section 126 as defined above. As mentioned

earlier, the issue of transported ozone and ozone precursors is being

addressed through the regulatory aspects of the Ozone Transport

Assessment Group. The complex science of ozone formation and transport

has necessitated the initiation of a study of what types of strategies

would be effective in reducing the

[[Page 43670]]

amount of transported ozone. Unlike other criteria pollutants, the most

effective control strategy and the most culpable source(s) are not

always obvious. The work being done by the Ozone Transport Assessment

Group will provide information on what types of control strategies need

to be implemented, and over what geographic areas. Once the results are

available, EPA intends to use its authority under section 110(k)(5) to

ensure implementation of these control strategies. These regional

strategies, combined with past and future rate-of-progress reductions,

will significantly reduce the occurrence of health threatening

concentrations of ozone over all areas.

Comment: The commentor states that the ``integrity of redesignation

requirements is further eroded by USEPA's inadequate ozone transport

policy.'' The commentor further states that the Walworth County and the

Kewaunee and Sheboygan County SIPs are incomplete due the waiving of

the following requirements: section 172 (c)(2) reasonable further

progress (RFP) requirement; section 176 transportation and general

conformity requirements; section 182 (a)(4) new source review

requirement; and section 182(f) NOx requirements.

Response: The EPA rejects the contention that the SIPs are

incomplete. The EPA also rejects the contention that the redesignation

requirements of section 107(d)(3)(E) are not being fully enforced.

Section 172 (c)(2) RFP

With respect to the RFP requirement, since Walworth, Kewaunee, and

Sheboygan Counties are being designated from a nonattainment areas to

attainment based on a showing that they have already attained the

NAAQS, the requirement to detail their future progress toward

attainment is unnecessary. The General Preamble (57 FR 13498) states

that the requirements for RFP will not apply in evaluating a request

for redesignation since, at a minimum, the air quality data for the

area must show that the area has already attained the NAAQS for the

pollutant in question.

Section 182 (a)(4) New Source Review

The EPA has not waived the Part D New Source Review (NSR)

requirement for the three Wisconsin Counties. The State has submitted

NSR rules to EPA and these rules were fully approved on January 18,

1995 (60 FR 3538). The NSR rules apply only to nonattainment areas.

Once an area is redesignated to attainment, the part C--Prevention of

Significant Deterioration of Air Quality (PSD) rules apply accordingly.

Wisconsin has demonstrated that Kewaunee and Sheboygan Counties will

maintain the NAAQS for ozone with PSD rules in effect.

Section 176 General and Transportation Conformity

The EPA has not ``waived'' the requirement for adoption and

implementation of conformity regulations. Rather, EPA has determined

that those requirements will continue to apply after the area is

redesignated, and therefore need not be fulfilled as a condition of

redesignation. This national policy was exercised in the Tampa, Florida

redesignation finalized on December 7, 1995, (60 FR 62748). The State

of Wisconsin, in fact, submitted transportation and general conformity

SIP revisions on November 23, 1994 and November 30, 1994, respectively.

An EPA action proposing approval of the transportation conformity

revision was published on May 10, 1996 (61 FR 21412). The issue is

whether full approval of these rules is needed prior to redesignation.

As presented in the June 5, 1996 and June 11, 1996 proposed

rulemakings, the EPA believes that it is reasonable to interpret the

conformity requirement as not being applicable for purposes of

redesignation under section 107(d). The rationale for this is based on

a combination of two factors. First, the requirement to submit SIP

revisions to comply with the conformity provisions of the Act continue

to apply to areas after redesignation to attainment, since such areas

would be subject to a section 175A maintenance plan. Therefore, the

State remains obligated to adopt the transportation and general

conformity rules even after redesignation and would risk sanctions for

failure to do so. While a redesignation of an area to attainment

enables the area to avoid further compliance with most requirements of

section 110 and part D, since those requirements are linked to the

nonattainment status of an area, the conformity requirements apply to

both nonattainment and maintenance areas. Second, EPA's Federal

conformity rules require the performance of conformity analyses in the

absence of state-adopted rules. Therefore, a delay in adopting State

rules does not relieve an area from the obligation to implement

conformity requirements.

Because areas are subject to the conformity requirements regardless

of whether they are redesignated to attainment, and are required to

implement conformity under Federal rules if State rules are not yet

adopted, the EPA believes it is reasonable to view these requirements

as not being applicable requirements for purposes of evaluating a

redesignation request.

For the reasons just discussed, the EPA believes that the ozone

redesignation requests for Walworth County and for Kewaunee and

Sheboygan Counties may be approved notwithstanding the lack of fully-

approved State transportation and general conformity rules. This

redesignation policy was also exercised in the Tampa, Florida,

Cleveland-Akron-Lorain, Ohio, and Grand Rapids, Michigan ozone

redesignations finalized on December 7, 1995 (60 FR 52748), May 7, 1996

(61 FR 20458), and June 21, 1996 (61 FR 31831), respectively.

According to the Federal transportation and general conformity

rules, conformity applies to maintenance areas as well as nonattainment

areas. Once redesignated, the redesignated areas will be maintenance

areas and will be required to conduct emission analyses to determine

that the VOC and NOx emissions remain below the motor vehicle

emission budget established in the maintenance plan. The General

Preamble to the conformity regulations further clarifies this issue,

particularly as it pertains to areas requesting and obtaining a section

182(f) NOx exemption.

Section 182(f) NOx Requirement

Section 182(f) establishes NOx requirements for ozone

nonattainment areas. However, it provides that these requirements do

not apply to an area if the Administrator determines that NOx

reductions would not contribute to attainment. On July 13, 1994,

Wisconsin submitted, along with Illinois and Indiana, a section 182(f)

NOx petition to be relieved of the section 182(f) NOx

requirements based on urban airshed modeling. The modeling demonstrates

that local NOx emission reductions would not contribute to

attainment of the NAAQS for ozone in the nonattainment areas, which

includes Kewaunee and Sheboygan Counties. The EPA approved the section

182(f) petition on January 26, 1996 (61 FR 2428). Therefore, the

section 182(f) NOx requirements are no longer applicable

requirements for these areas. However, approval of the waiver does not

exempt these counties from requirements that may be imposed as a result

of the Ozone Transport Assessment Group process, as explained in the

January 26, 1996, final rulemaking.

Comment: The commentor stated that exempting ozone nonattainment

areas from compliance with part D NSR

[[Page 43671]]

regulations presents special problems since prevention of significant

deterioration (PSD) and preconstruction rules ``do not fully address

how emissions of ozone precursors should be treated to assure that

major new or modified sources do not cause or contribute to a NAAQS

violation.''

Response: The EPA emphasizes that, contrary to the commentor's

contention, ozone nonattainment areas are not exempt from compliance

with part D NSR regulations. An October 14, 1994, memorandum was issued

by Mary Nichols, Assistant Administrator for Air and Radiation, titled,

Part D New Source Review Requirements for Areas Requesting

Redesignation to Attainment (Nichols Memorandum). That memorandum

suggests that areas that are otherwise eligible for redesignation need

not have a fully approved part D NSR program as a prerequisite to

redesignation since the PSD program would apply once the area has been

redesignated to attainment. As mentioned previously, the State of

Wisconsin submitted NSR rules on November 15, 1992. These rules were

approved by EPA on January 18, 1995 (60 FR 3538). The NSR rules have

been in effect in Kewaunee and Sheboygan Counties because of their

nonattainment designation. Upon redesignation to attainment, the

requirements of the PSD program will replace the NSR requirements. (See

discussion of NSR issue in the Grand Rapids Federal Register, 60 FR

37366).

The Nichols' memorandum's statement that EPA regulations (40 CFR

51.165(b)(3) and Appendix S) ``do not fully address how ozone precursor

emissions should be treated to ensure that major new or modified

sources do not cause or contribute to an ozone NAAQS violation'' is

based on the difficulty in modeling the impact of emissions from

specific sources on ozone formation. The policy, however, also states

that for areas with preconstruction monitoring or other information

that indicate that the area is not meeting the ozone standard after

redesignation to attainment, Appendix S or 40 CFR 51.165(b) apply.

These areas should then require major new or modified sources to obtain

VOC emission offsets of at least a 1:1 ratio. In addition, the PSD

program allows Best Available Control Technology (BACT) in place of

Lowest Achievable Emission Rate (LAER) if the less stringent control

technology can be justified based on an economic, energy and

environmental impacts analysis. Consequently, if a justification for a

RACT control cannot be made on the basis of an environmental impact

analysis, the State may impose a more stringent level of control other

than what may be selected as BACT in an area redesignated to attainment

but not meeting the NAAQS. With these elements, the preconstruction

review programs can assure that major new or modified sources achieve

the statutory goals of Part D NSR.

Comment: The commentor states that the EPA should process the

November 23, 1994, and November 30, 1994 transportation and general

conformity rules submittals before finalizing action on the Wisconsin

redesignations. The commentor supports this by stating that changes in

mobile source emissions and in demographic patterns around the area are

directly related to ozone precursor emissions.

Response: The EPA agrees that surface transportation projects and

evolving demographic distributions can have an influence on an area's

ozone precursor emissions and its overall ability to demonstrate

maintenance with the ozone NAAQS. However, approval of the

redesignation requests for Walworth County and for Kewaunee and

Sheboygan Counties does not relieve the State from the requirement that

it comply with the conformity provisions of the Act, including

performing conformity analyses. The State has submitted transportation

and general conformity rules. As mentioned earlier, the transportation

SIP revision was proposed for approval on May 10, 1996, and should be

finalized soon. The State is simply adopting the Federal rules for

general conformity, and final approval of that submittal is expected

soon. Our national policy, as first exercised in the December 7, 1995,

Tampa rulemaking (60 FR 62748), does not require conformity as a

prerequisite for redesignation. The status of the State rules is not a

factor. Therefore, the EPA believes that the ozone redesignation

requests for Walworth County and for Kewaunee and Sheboygan Counties

may be approved notwithstanding the lack of fully-approved State

transportation and general conformity rules.

The following comments are specific to the proposed approval of the

redesignation request for Kewaunee, Manitowoc, and Sheboygan Counties.

Comment: The commentor protests the ``clandestine'' determination

of attainment which was applied to Kewaunee and Sheboygan Counties. The

commentor further states that this application exempted the area from

the section 182(b)(1) 15 percent requirement.

Response: The EPA's application of the determination of attainment

policy to Kewaunee and Sheboygan Counties was not ``clandestine'' but

rather was clearly explained in the portion of the proposed rulemaking

to which it was relevant (i.e., Attainment Demonstration Requirement).

The EPA made a determination in the proposed approval of the

redesignation to attainment that since these areas are demonstrating

monitored attainment of the ozone NAAQS, a factual determination based

on 3 years of complete, quality assured monitoring data, certain

provisions of the Act do not require SIP revisions to be made by the

State for so long as the area continues to attain the standard. As

explained in a May 10, 1995, memorandum from John S. Seitz, Director,

Office of Air Quality Planning and Standards, entitled, ``RFP,

Attainment Demonstration, and Related Requirements for Ozone

Nonattainment Areas Meeting the Ozone National Ambient Air Quality

Standard,'' EPA believes it is appropriate to interpret the more

specific RFP, attainment demonstration and related provisions of

subpart 2 in the same manner as EPA had previously interpreted the

general provisions of subpart 1 of part D of Title I (sections 171 and

172).

EPA has explained at length in other notices, including the July

20, 1995 determination of attainment regarding the Grand Rapids area

(60 FR 37366), its rationale for that interpretation of the Act and

incorporates those explanations by reference here. See Approval and

Promulgation of Implementation Plans and Designation of Areas of Air

Quality Planning Purposes; Ohio, 61 FR 20458 (May 7, 1996);

Determination of Attainment of Ozone Standard for Salt Lake and Davis

Counties, Utah, 60 FR 36723 (July 18, 1995). EPA emphasizes that it has

not suspended or granted the Wisconsin moderate counties an exemption

from any applicable requirements. Rather, EPA has interpreted the

requirements of sections 182(b)(A)(I) and 172 (c)(9) as not being

applicable once an area has attained the standard, as long as it

continues to do so. This is not a waiver of requirements that by their

terms clearly apply; it is a determination that certain requirements

are written so as to be operative only if the area is not attaining the

standard.

The 1995 Seitz memorandum was clear about the consequences of the

policy for redesignations. First, it made plain that a determination of

attainment is not tantamount to a redesignation of an area to

attainment. Attainment is only one of the criteria set forth in section

107(d)(3)(E). To be redesignated, the State must satisfy all of the

criteria of section 107(d)(3)(E), including the requirement of a

demonstration that the improvement in the area's air quality is

[[Page 43672]]

due to permanent and enforceable reductions, and the requirements that

the area have a fully-approved SIP which meets all of the applicable

section 110 and part D requirements, and a fully approved maintenance

plan.

Upon the determination of attainment for Kewaunee and Sheboygan

Counties, however, the attainment demonstration requirement of section

182(b)(1)(A)(I) is no longer considered an applicable requirement under

section 107(d)(3)(E). It is no longer included among those measures

required for SIP approval.

The commentor also stated that EPA's determination of attainment,

as applied to the moderate counties, waived the 15 percent plan

requirement. In fact, a 15 percent plan for the moderate and severe

nonattainment areas in Wisconsin was submitted to EPA on November 15,

1993 and was approved on March 22, 1996. The 15 percent plan is being

implemented in the moderate counties and is not affected by EPA's

determination that the area has attained the standard.

Comment: The commentor states concern about the integrity of the

monitoring network in Kewaunee and Sheboygan Counties. The commentor

specifically states that 1994, 1995, and 1996 data show ``worrisome

gaps'' and a ``continuing problem with reliability.'' Additionally, the

commentor identifies preliminary ozone data indicating exceedances of

the ozone standard in 1996 in Manitowoc and Kewaunee Counties.

Response: The Code of Federal Regulations, Part 58, requires 75

percent data collection in order for the monitoring to be considered

complete. There are four ozone monitors in the three moderate area

counties which were proposed for redesignation to attainment. The

monitoring season in Wisconsin extends for 184 days, from April 15th to

October 15th. All of the monitors recorded valid readings on at least

96 percent of the total number of possible days. In 1995, the two

monitors in Manitowoc recorded valid readings for all 184 days of the

ozone season. The commentor did not identify specific days or monitors

in which the ``gaps'' appeared. The Sheboygan monitor was out of

service for approximately 98 hours in early July 1995. Most of the

hours were from July 7th into July 10th, which was a period of

relatively low ozone readings across the area. The monitor experienced

a pump failure during this time period. Some of the missing hours were

during July 13th and 14th which was a period of elevated ozone

concentrations. During this period, condensation in the lines, due to

extremely high humidity, caused invalid readings. However, at other

monitors in the region, the maximum ozone concentration during this

episode was recorded during the afternoon of July 12th, which is a

period when the Sheboygan monitor was collecting data. Data submitted

thus far in 1996 does not show excessive gaps in data collection and

appears to be fulfilling the data collection requirements.

The commentor also stated that preliminary exceedances (subject to

quality assurance procedures) were recorded at the Manitowoc-Woodland

Dunes monitor on June 28, 1996 and on July 6, 1996. As we have noted

above, if either of these exceedances is determined to be valid, the

Manitowoc-Woodland Dunes monitor would be in violation of the ozone

standard and, consequently, Manitowoc County would be ineligible for

redesignation to attainment. The monitor in Kewaunee County showed an

ozone value of 163 parts per billion in June of this year. Preliminary

indications from the State are that this value represents ozone from a

standard calibration procedure where the monitor was not deactivated

during the calibration test. Therefore, the hourly concentration

appears in the database but is not representative of ambient ozone

concentration levels. Even if it is a valid reading, the Kewaunee

County monitor would still not be in violation of the ozone standard

because it would only have three exceedances over the past three years,

whereas four exceedances are needed for a monitor to be in violation.

The EPA is not finalizing the request for redesignation to

attainment for Manitowoc County in this action. The counties of

Kewaunee and Sheboygan continue to demonstrate monitored attainment

with the ozone NAAQS.

Comment: The commentor expresses concern that the EPA will make the

final action approving the redesignation to attainment effective upon

the date of publication in the Federal Register. The commentor states

that it is inappropriate for the EPA to depart from the ``typical

thirty day period'' used in the past and EPA should not ``race against

the clock'' in order to avoid future monitored exceedances.

Response: The notice of final rulemaking approving the

redesignation to attainment for the counties of Sheboygan and Kewaunee

will become effective the date it is published in the Federal Register.

The thirty-day delay in the effective date is necessary when a final

rule will be imposing new requirements upon an area and the area needs

time to prepare for the imposition of those new requirements. The

redesignation to attainment for Sheboygan and Kewaunee Counties does

not impose any new requirements in those two counties but rather

relieves a restriction. Therefore, the effective date of action does

not need to be delayed. The immediate effective date for this

redesignation is authorized under both 5 U.S.C. 553(d)(1), which

provides that rulemaking actions may become effective less than 30 days

after publication if the rule ``grants or recognizes an exemption or

relieves a restriction'' and section 553(d)(3), which allows an

effective date less than 30 days after publication ``as otherwise

provided by the agency for good cause found and published with the

rule.''

Comment: The commentor states that the redesignation ignores

findings from the Lake Michigan Ozone Study which show these areas will

be unable to attain and maintain the ozone NAAQS. The commentor also

states that EPA is ignoring emissions from Wisconsin areas which may

contribute to any future violation of the standard in Kewaunee or

Sheboygan County. Additionally, the commentor states that existing

Title V requirements should be enforced.

Response: Kewaunee and Sheboygan Counties have demonstrated through

monitoring data that they have attained the NAAQS for ozone. The State

has also demonstrated that emissions in Kewaunee and Sheboygan Counties

will decrease when projected to the year 2007. These decreases,

combined with reductions occurring upwind, will assist the areas in

their effort to maintain the ozone standard.

The Lake Michigan Ozone Study (LMOS), coordinated by the Lake

Michigan Air Directors Consortium (LADCO), has submitted modeling for

use in supporting an overwhelming transport petition for Kewaunee,

Sheboygan, and Manitowoc Counties. The overwhelming transport guidance

was provided in a September 1, 1994, memorandum from Mary D. Nichols,

titled `` Ozone Attainment Dates for Areas Affected by Overwhelming

Transport.'' This analysis predicted ozone concentrations over the

four-state region surrounding Lake Michigan. The modeling, which uses

1991 meteorological conditions and 1990 emission information grown to

the year 1996, shows predicted ozone concentrations above the standard

in and around Kewaunee and Sheboygan Counties. The modeling was

submitted by the State of Wisconsin to support a petition that the

moderate nonattainment counties of Kewaunee, Sheboygan, and Manitowoc

not be bumped up to a higher classification in response to either a

monitored ambient

[[Page 43673]]

air quality violation or the lack of a demonstration showing attainment

by the year 1996. The overwhelming transport modeling was submitted to

demonstrate that high levels of predicted ozone from upwind areas

(i.e., Chicago, Milwaukee, and areas further upwind) are impacting the

three counties and that the areas would be able to attain the NAAQS but

for the overwhelming amount of transported ozone.

Kewaunee and Sheboygan Counties continue to demonstrate monitored

attainment of the ozone NAAQS. However, they are part of the LADCO

group, which is in the process of developing a final attainment

demonstration using photochemical modeling for the four-state LADCO

region. Because of LADCO's involvement in the Ozone Transport

Assessment Group effort (established pursuant to the March 2, 1995,

Mary Nichols Memorandum) and uncertainty about current and future

boundary conditions and control strategies, a final attainment

demonstration for the area has not been submitted.

Initial modeling for the area was also recently submitted to EPA in

response to the Phase I requirements of the Mary Nichols memorandum.

This modeling includes predicted ozone concentrations for 1996 and 2007

using various control strategy scenarios combined with several

assumptions of boundary ozone conditions. Some of the 2007 scenarios

show predicted maximum ozone values below 124 parts per billion, the

remainder show areas with predicted ozone values above 124 parts per

billion. The modeling documentation only indicates whether attainment

will be reached in the four-State LADCO region and does not identify

the levels of predicted ozone for Kewaunee and Sheboygan Counties.

Overall, the modeling is playing an important role in the determination

of emission controls needed to provide for attainment in and downwind

of the nonattainment areas in the Lake Michigan Ozone Study region.

The EPA believes that the ultimate test of whether an area has, in

fact, achieved attainment is demonstrated through monitoring and that

the redesignation to attainment of Kewaunee County and Sheboygan County

is appropriate given their ability to show monitored attainment of the

standard and because they have met the other redesignation criteria. An

explanation of how the monitored attainment of the ozone standard is

determined is contained in 40 Code of Federal Regulations, Part 50,

Appendix H. The clean air quality data cover the years 1993, 1994, and

1995, which rank as some of the worst years in terms of ozone forming

potential based on a 42-year record of meteorological data. The lack of

a monitored violation in these counties during this time period

supports the State's claim that the air quality has improved due to

permanent and enforceable reductions, and is in attainment with the

NAAQS. However, EPA also feels that the LADCO modeling that has been

submitted is legitimate and that it provides information that primarily

speaks to the transport of ozone and the effect of various control

strategies on future ozone formation. The elevated levels of predicted

ozone in the Kewaunee, Manitowoc, and Sheboygan County area (i.e.,

approximately 120 to 140 parts per billion) are indicative of the

transport phenomenon, which is most pronounced generally along the

western and eastern shoreline of Lake Michigan. While the modeling is

useful to evaluate control strategy effectiveness and transport, less

confidence should be placed upon the specific ozone concentrations

predicted by the model to occur in 1996 at specific locations across

the region.

There has long been an understanding that uncertainty is a part of

any ozone modeling analysis. Ozone modeling demonstrations are

primarily designed to evaluate control strategies for future

attainment. Ozone modeling is not used for, nor intended to be used

for, determining an area's current attainment status. In addition to

the uncertainties, the test for determining modeled attainment differs

substantially from the current form of the ozone NAAQS, which permits

occasional exceedances at any location. When evaluating modeling

demonstrations, it is appropriate to consider additional information,

such as air quality monitoring data, in order to characterize the

robustness of the analysis. Because of the uncertainties inherent in

the modeling process, air quality monitoring data is weighted more

heavily the closer one gets to the attainment date. For the reasons

discussed above, EPA believes that the redesignation to attainment for

these counties is appropriate given their ability to demonstrate

attainment with the ozone standard using monitored data.

As mentioned earlier, the maintenance plan for Sheboygan and

Kewaunee Counties includes a triggering mechanism which, in the event

of a monitored violation, would activate the contingency plan in the

violating county. The contingency plan includes provision for an

analysis to be performed by the State and approved by EPA to identify

if the violation was caused by local sources or if it was the result of

ozone transported from upwind areas. The contingency plan submitted by

the State does not exclude the Milwaukee area from the analysis.

However, the contingency plan only speaks to the control measures to be

implemented in the violating county if it is determined that

implementation of those measures will promptly correct the violation.

It does not call for the implementation of control measures in the

upwind areas.

The reductions required in the Milwaukee-Racine and Chicago-Gary

nonattainment areas were discussed earlier in this document. These

reductions will be combined with possible future reductions of ozone

precursor emissions from upwind sources, which will likely be

implemented as a result of the work currently being done by the Ozone

Transport Assessment Group. The EPA intends to use its regulatory

authority to ensure implementation of the recommended control

strategies coming from the Ozone Transport analysis. The reductions

resulting from these strategies will assist urban areas in their

efforts to demonstrate attainment as well as to lower the concentration

of ozone found in more rural areas, such as the three Wisconsin

counties.

The results from the Ozone Transport Assessment Group effort are to

be submitted as formal revisions to the SIPs during 1997. The State of

Wisconsin is very active in the Ozone Transport Assessment effort.

However, the State has not committed to all of the specific reductions

in volatile organic compounds as required by EPA, pending the results

of the ozone transport analysis showing which emission reduction

strategies will be effective. The EPA has issued a finding of failure

to submit to the State of Wisconsin for the required reductions.

Finally, the EPA agrees with the commentor that it is important

that all existing Title V permit requirements be enforced to ensure

that the maximum benefits are received from reductions in ozone

precursors already being relied upon.

III. Final Rulemaking Action

The EPA approves the redesignation to attainment for ozone for the

Wisconsin counties of Walworth, Kewaunee, and Sheboygan. The EPA also

approves the section 175A maintenance plans for these three counties as

revisions to the Wisconsin SIP. The State of Wisconsin has satisfied

[[Page 43674]]

all of the necessary requirements of the Act.

EPA finds that there is good cause for this redesignation to

attainment and SIP revision to become effective immediately upon

publication. A delayed effective date is unnecessary, due to the nature

of a redesignation to attainment, which relieves the area from certain

Act requirements that would otherwise apply to it. The immediate

effective date for this redesignation is authorized under both 5 U.S.C.

Sec. 553(d)(1), which provides that rulemaking actions may become

effective less than 30 days after publication if the rule ``grants or

recognizes an exemption or relieves a restriction'' and section

553(d)(3), which allows an effective date less than 30 days after

publication ``as otherwise provided by the agency for good cause found

and published with the rule.''

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to any SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Ozone SIPs are designed to satisfy the requirements of part D of

the Act and to provide for attainment and maintenance of the ozone

NAAQS. This final redesignation should not be interpreted as

authorizing the State to delete, alter, or rescind any of the VOC or

NOX emission limitations and restrictions contained in the

approved ozone SIP. Changes to ozone SIP VOC regulations rendering them

less stringent than those contained in the EPA approved plan cannot be

made unless a revised plan for attainment and maintenance is submitted

to and approved by EPA. Unauthorized relaxations, deletions, and

changes could result in both a finding of nonimplementation [section

173(b) of the Act] and in a SIP deficiency call made pursuant to

section 110(a)(2)(H) of the Act.

IV. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et seq.,

EPA must prepare a regulatory flexibility analysis assessing the impact

of any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and

604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D, of the

Act do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the Act,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Act forbids EPA to base its actions on such grounds. Union Electric Co.

v. U.S.E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

Redesignation of an area to attainment under section 107(d)(3)(E)

of the Act does not impose any new requirements on small entities.

Redesignation is an action that affects the status of a geographical

area and does not impose any regulatory requirements on sources. The

Administrator certifies that the approval of the redesignation request

will not affect a substantial number of small entities.

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), 2 U.S.C. Sec. 1532, signed into law on

March 22, 1995, the EPA must prepare a budgetary impact statement to

accompany any proposed or final rulemaking that includes a Federal

mandate that may result in estimated costs to State, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. Under section 205, 2 U.S.C. Sec. 1535, the EPA must select the

most cost-effective and least burdensome alternative that achieves the

objectives of the rule and is consistent with statutory requirements.

Section 203, 2 U.S.C. Sec. 1533, requires the EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated costs of

$100 million or more to either State, local or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

constraining this rule and other required information to the U.S.

Senate, the U.S. House of Representative and the Comptroller General of

the General Accounting Office prior to publication of the rule in

today's Federal Register. This rule is not a ``major rule'' as defined

by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this final action must be filed in the United States Court of

Appeals for the appropriate circuit by October 25, 1996. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subject

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Motor vehicle pollution, Nitrogen oxides, Reporting and

recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, National parks, Nitrogen oxides, Ozone, Volatile organic

compounds, Wilderness areas.

Dated: August 7, 1996.

Valdas V. Adamkus,

Regional Administrator.

Chapter I, title 40 of the Code of Federal Regulations is amended

as follows:

[[Page 43675]]

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart YY--Wisconsin

2. Section 52.2585 is amended by adding paragraph (k) to read as

follows:

Sec. 52.2585 Control strategy: Ozone.

* * * * *

(k) Approval--On December 15, 1995, and May 15, 1996, the Wisconsin

Department of Natural Resources submitted requests to redesignate

Walworth County and Sheboygan and Kewaunee Counties, respectively, from

nonattainment to attainment for ozone. The State also submitted

maintenance plans as required by section 175A of the Clean Air Act, 42

U.S.C. Sec. 7505a. Elements of the section 175A maintenance plans

include attainment emission inventories for NOx and VOC,

demonstrations of maintenance of the ozone NAAQS with projected

emission inventories to the year 2007 for NOx and VOC, plans to

verify continued attainment, and contingency plans. If a violation of

the ozone NAAQS, determined to be caused by local sources is monitored,

Wisconsin will implement one or more appropriate contingency measure(s)

contained in the contingency plan. Once a violation of the ozone NAAQS

is recorded, the State will notify EPA and review the data for quality

assurance. A plan to analyze the violation, including an analysis of

meteorological conditions, will be submitted within 60 days to EPA-

Region 5 for approval. Within 14 months of the violation, Wisconsin

will complete and public notice the analysis and submit it to EPA-

Region 5 for review. If the analysis shows that local sources caused

the violation, Wisconsin will implement the contingency measures within

24 months after the violation. The contingency measures to be

implemented in Walworth County are Stage II vapor recovery and non-

Control Technology Guideline (non-CTG) Reasonably available control

technology (RACT) limits. Contingency measures to be implemented in

either Kewaunee or Sheboygan County are lower major source

applicability thresholds for industrial sources and new gasoline

standards which will lower VOC emissions. The redesignation request and

maintenance plan meet the redesignation requirements in section

107(d)(3)(E) and 175A of the Act, respectively.

PART 81--[AMENDED]

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

Authority: 42 U.S.C. 7401-7871q.

2. In section 81.350, the ozone table is amended by revising the

entries for Kewaunee County, Sheboygan County, and Walworth County to

read as follows:

Sec. 81.350 Wisconsin.

* * * * *

Wisconsin--Ozone

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

Designation Classification

Designated areas ---------------------------------------------------------------------------

Date \1\ Type Date Type

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

* * * * * * *

Kewaunee County Area Kewaunee County [Insert Date of Attainment.

...... Publication].

* * * * * * *

Sheboygan County Area Sheboygan [Insert Date of Attainment.

County ..... Publication].

Walworth County Area Walworth County [Insert Date of Attainment.

...... Publication].

* * * * * * *

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

\1\ This date is November 15, 1990, unless otherwise noted.

[FR Doc. 96-21697 Filed 8-23-96; 8:45 am]

BILLING CODE 6560-50-P