[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Pages 41405-41411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14691]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2020-0097; EPA-R05-OAR-2020-0199; EPA-R05-OAR-2020-0200;
FRL-10011-90-Region 5]
Air Plan Approval; Wisconsin; Redesignation of the Shoreline
Sheboygan, WI Area to Attainment of the 2008 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) finds that the
Shoreline Sheboygan County, Wisconsin area is attaining the 2008
primary and secondary ozone National Ambient Air Quality Standards
(NAAQS), and is approving a request from the Wisconsin Department of
Natural Resources (WDNR) to redesignate the area to attainment for the
2008 ozone NAAQS because the request meets the statutory requirements
for redesignation under the Clean Air Act (CAA). EPA is approving, as a
revision to the Wisconsin State Implementation Plan (SIP), the State's
plan for maintaining the 2008 ozone NAAQS through 2032 in the Shoreline
Sheboygan area. EPA finds adequate and is approving Wisconsin's 2025
and 2032 volatile organic compound (VOC) and oxides of nitrogen
(NOX) Motor Vehicle Emission Budgets (MVEBs) for the
Shoreline Sheboygan area. EPA is also approving Wisconsin's VOC
reasonably available control technology (RACT) SIP revisions. Finally,
EPA is approving the Wisconsin SIP as meeting the applicable base year
inventory requirement, emission statement requirements, VOC RACT
requirements, motor vehicle inspection and maintenance (I/M) program
requirements, and NOX RACT requirements.
DATES: This final rule is effective on July 10, 2020.
ADDRESSES: EPA has established dockets for this action under Docket ID
No. EPA-R05-OAR-2020-0097, Docket ID No. EPA-R05-OAR-2020-0199, and
Docket ID No. EPA-R05-OAR-2020-0200. All documents in the dockets are
listed on the www.regulations.gov website. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either through www.regulations.gov or at the Environmental
Protection Agency, Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays and facility closures due to COVID 19. We recommend that you
telephone Eric Svingen, Environmental Engineer, at (312) 353-4489
before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 353-4489,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. What is being addressed in this document?
This rule approves the February 11, 2020 and April 1, 2020
submissions from Wisconsin requesting redesignation of the Shoreline
Sheboygan area to attainment for the 2008 ozone standard. The
background for this action is discussed in detail in EPA's proposal,
dated May 13, 2020 (85 FR 28550). In that rulemaking, we noted that,
under EPA regulations at 40 CFR part 50, the 2008 ozone NAAQS is
attained in an area when the 3-year average of the annual fourth
highest daily maximum 8-hour average concentration (i.e., the design
value) is equal to or less than 0.075 parts per million (ppm), when
truncated after the thousandth decimal place, at all ozone monitoring
sites in the area. (See 40 CFR 50.15 and appendix P to 40 CFR part 50.)
The level of the 2008 ozone NAAQS is often expressed as 75 parts per
billion (ppb). Under the CAA, EPA may redesignate nonattainment areas
to attainment if complete, quality-assured data show that the area has
attained the standard and the area meets the other CAA redesignation
requirements in section 107(d)(3)(E). The proposed rule
[[Page 41406]]
provides a detailed discussion of how Wisconsin has met these CAA
requirements and EPA's rationale for approving the redesignation
request and related SIP submissions.
As discussed in the proposed rule, quality-assured and certified
monitoring data for 2017-2019 show that the area has attained the 2008
ozone standard, and EPA has determined that the attainment is due to
permanent and enforceable measures. In the maintenance plan submitted
for the area, Wisconsin has demonstrated that compliance with the ozone
standard will be maintained in the area through 2032. As also discussed
in the proposed rule, Wisconsin has adopted 2025 and 2032 VOC and
NOX MVEBs for the area that are supported by Wisconsin's
maintenance demonstration. Finally, EPA is approving the VOC RACT SIP
revisions included in Wisconsin's February 11, 2020 and April 1, 2020
submittals, which include Administrative Order AM-20-02 for Kieffer &
Co. Inc. and Administrative Order AM-20-03 for Kohler Power Systems.
With these approvals of Wisconsin's SIP submissions, EPA finds that all
SIP requirements applicable to redesignation are fully approved.
Per the CAA, upon the effective date of this redesignation,
nonattainment area requirements cease to apply to this area. More
specifically, the requirements to submit certain planning SIPs related
to attainment, including attainment demonstration requirements (the
Reasonably Available Control Measures (RACM) requirement of section
172(c)(1) of the CAA, the Reasonable Further Progress (RFP) and
attainment demonstration requirements of sections 172(c)(2) and (6) and
182(b)(1) of the CAA, and the requirement for contingency measures of
section 172(c)(9) of the CAA), are no longer applicable to the area and
cease to apply. See 40 CFR 51.1118.
II. What comments did we receive on the proposed rule?
Public comments on the May 13, 2020 proposed rule were due by June
12, 2020. During the comment period EPA received three comments in
support of our action, one comment that was not relevant to our action,
as well as two adverse comments. EPA thanks the commenters for their
comments. Summaries of the adverse comments and EPA's responses are
provided below.
Comment 1: A member of the public shared concerns regarding the
health effects of ozone. The commenter lists health problems and asks
whether these problems are occurring in Sheboygan County, and whether
any occurrence of these problems could be related to ozone. The
commenter states a belief that ozone standards will continue to
decrease, and notes that the American Lung Association has supported a
standard of 60 ppb. The commenter states that the design value for the
Shoreline Sheboygan area is 75 ppb, which ``can't get any closer'' to
the level of the 2008 ozone NAAQS at 75 ppb. The commenter references
the 2015 ozone NAAQS which is set at a level of 70 ppb, alleges that
``implementation has been postponed by lawsuits and EPA is dragging its
feet,'' and raises concerns that redesignation of the Shoreline
Sheboygan area for the 2008 ozone NAAQS would diminish efforts to
attain the 2015 ozone NAAQS. The commenter states that Sheboygan County
needs to do a comprehensive health study, which would motivate
stakeholders to collaborate in achieving greater reductions in ozone
levels. Lastly, the commenter congratulates the Sheboygan County
business community for ``not adding to most of the bad ozone that comes
from out of state,'' but shares concerns that not enough attention is
being paid to health issues.
Response 1: The issues raised by this commenter are largely beyond
the scope of this action, in which EPA is evaluating the State's
request to redesignate the area for the 2008 ozone NAAQS under the
criteria at CAA section 107(d)(3)(E).
The requirement for EPA to periodically review the NAAQS, and to
update those standards as necessary, is provided under sections 108 and
109 of the CAA. As part of the NAAQS review process, EPA conducts an
analysis of available science, including key science judgements that
inform the development of risk and exposure assessments. Resulting from
this process, EPA has promulgated progressively more protective
standards for ground-level ozone. On March 27, 2008, EPA revised the 8-
hour ozone NAAQS by strengthening the level of the primary and
secondary standards to 75 ppb (73 FR 16435), and on October 26, 2015,
EPA further revised the 8-hour ozone NAAQS by strengthening the level
of the primary and secondary standards to 70 ppb (80 FR 65292). In this
action EPA is not reevaluating our March 27, 2008 and October 26, 2015
actions under CAA sections 108 and 109, in which we reviewed available
science and revised the ozone standards to levels determined by the
Administrator to be protective of public health.
Likewise, the commenter's concerns regarding implementation and
attainment of the 2015 ozone NAAQS are not relevant to this
redesignation for the 2008 ozone NAAQS. EPA also disagrees with the
commenter's assertion that implementation of the 2015 ozone NAAQS ``has
been postponed by lawsuits and EPA is dragging its feet.'' On December
6, 2018, EPA published implementation requirements for the 2015 ozone
NAAQS, including requirements for attainment demonstrations and
programs such as nonattainment new source review (NNSR) (83 FR 62998).
EPA is continuing to implement the 2015 ozone NAAQS according to the
requirements set forth in that rulemaking, including in the Sheboygan
County nonattainment area for the 2015 ozone NAAQS, which covers the
identical geographic area as the Shoreline Sheboygan area for the 2008
ozone NAAQS. Requirements appropriate for nonattainment areas, such as
NNSR, will continue to apply in the area because the area will retain
its nonattainment designation for the 2015 ozone NAAQS.
The commenter's inquiry about whether health problems they've
experienced are related to ozone pollution is also beyond the scope of
this action, which focuses only on whether the Shoreline Sheboygan area
has met the requirements for redesignation under CAA section
107(d)(3)(E).
Finally, EPA reiterates that according to 40 CFR part 50, the 2008
ozone NAAQS is attained when the design value in an area is equal to or
less than 75 ppb. Although the commenter asserts that the Shoreline
Sheboygan area's design value of 75 ppb ``can't get any closer'' to the
standard, such a design value nevertheless meets the requirements for
redesignation under section 107(d)(3)(E)(i) of the CAA.
Comment 2: Sheboygan Ozone Reduction Alliance (SORA), a citizen
group focused on reducing air pollution and advocating for public
health, provided two reasons for opposing this action.
First, SORA contends that WDNR has failed to demonstrate that
reductions in emissions were responsible for reductions in Sheboygan
County ozone concentrations. The commenter notes that WDNR chose 2011
and 2017 as the years to be used for nonattainment year and attainment
year emissions inventories, and the commenter quantifies that between
2011 and 2017, NOX emissions in the area decreased by 48%
and VOC emissions in the area decreased by 15%. For the years 2008
through 2019, the commenter presents a table of design values for the
area, as
[[Page 41407]]
well as the number of days each year that the daily maximum 8-hour
average in the area was above the level of the 2015 ozone NAAQS. The
commenter contends that between 2011 and 2017, ozone concentrations did
not decrease proportionally with emissions reductions. Further, the
commenter presents a table of the design values for the ten 3-year
periods occuring between 2008 through 2019, and notes that none of the
design values for the five 3-year periods occuring between 2011 and
2017 show attainment of the 2008 ozone NAAQS. The commenter writes that
``although the 2017-2019 design value appears to meet the 2008 NAAQS,
two of the years used for that design value, 2018 and 2019, are outside
of the scope of the emission inventory years provided in the request,''
and contends that because WDNR did not provide inventories for 2018 or
2019, it is not possible to determine that the 2017-2019 design value
was a result of permanent and enforceable reductions. The commenter
also notes that WDNR's submission included the statement ``Sheboygan
County sources have little to no ability to influence ozone
concentrations at monitors in the county,'' and contends that WNDR
therefore does not demonstrate that the improvement in air quality is
based on permanent and enforceable emissions reductions. The commenter
suggests that WDNR consider expanding the nonattainment area, in order
to manage the regional emissions contributing to violations of the
ozone standards in Sheboygan County and along Lake Michigan.
Second, SORA contends that ozone season meteorology deviated
significantly from historical averages in 2019 and was likely the
primary contributor to reduced ozone concentrations during the 2019
ozone season. Specifically, the commenter contends that ``the 2019
ozone season had important meteorological trends that deviated from
historical averages for wind direction and temperature.'' The commenter
notes that high ozone concentrations at the Kohler Andrae monitor are
``almost always'' associated with southerly winds originating from the
south-southwest to southeast, and contends that the average wind
direction in 2019 differed from the average wind direction in 2009
through 2017. According to the commenter, an increased frequency of
winds from the north and northeast accounts for a drop in average wind
direction, and this caused fewer days in 2019 with winds favorable to
ozone formation. Further, the commenter notes that warm temperatures
are associated with high ozone formation at the Kohler Andrae monitor,
and contends that average summer temperature in 2019 was below the
2008-2018 average. The commenter suggests that lower average
temperatures indicate fewer days with temperatures conducive to
increased ozone formation, and notes that WDNR's submittal shows a
correlation between temperature and ozone concentrations. To illustrate
these points, the commenter includes four charts displaying data for
wind direction and temperature. The commenter concludes these points by
contending that unusual meteorology is ``likely the significant
contributor to reduced ozone concentrations'' at the Kohler Andrae
monitor, without which the design value would have been higher. Lastly,
the commenter states that ozone problems will not be solved through
redesignation, suggests that regional solutions are required, and hopes
that coordinated cooperation between stakeholders will lead to improved
air quality.
Response 2: As discussed below, EPA finds that approval of
Wisconsin's request to redesignate the Shoreline Sheboygan area is
consistent with the requirements of CAA section 107(d)(3)(E).
First, EPA does not agree that attainment of the 2008 ozone NAAQS
in Sheboygan County was not due to permanent and enforceable reductions
in emissions, per CAA section 107(d)(3)(E)(iii).\1\ As stated in EPA's
long-standing guidance on redesignations (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992), we interpret this provision to mean that
``[a]ttainment resulting from temporary reductions in emission rates
(e.g., reduced production or shutdown due to temporary adverse economic
conditions) or unusually favorable meteorology would not qualify as an
air quality improvement due to permanent and enforceable emission
reductions.'' Calcagni Memo at 4. EPA's guidance instructs that the
showing under CAA section 107(d)(3)(E)(iii) ``should estimate the
percent reduction . . . achieved from Federal measures . . . as well as
control measures that have been adopted and implemented by the State,''
and that overall, we must be able to ``reasonably attribute the
improvement in air quality to emission reductions which are permanent
and enforceable.'' Id. This cataloguing of permanent and enforceable
state and Federal measures, along with the estimated reductions in
precursor emissions that cause ozone pollution which are attributable
to each measure over the relevant time period, has long been EPA's
methodology to demonstrate compliance with CAA section
107(d)(3)(E)(iii) and has been upheld in court. See Sierra Club v. EPA,
774 F.3d 383, 393-95 (7th Cir. 2014). As noted by the court in Sierra
Club, ``the CAA does not require EPA to prove causation to an absolute
certainty. Rather in accord with its own internal guidance . . . EPA
had to `reasonably attribute' the drops in ozone to permanent and
enforceable measures. Only if EPA's path cannot `be reasonably
discerned,' or if EPA relied on factors `that Congress did not intend
it to consider' or `fail[ed] to consider an important aspect of the
problem,' will we conclude that EPA acted arbitrarily or
capriciously.'' Id. at 396.
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\1\ The commenter states that they do not support EPA's proposal
to redesignate the Sheboygan County area because WDNR has failed to
demonstrate that CAA section 107(d)(3)(E)(iii) is met. However, as
that statutory provision clearly states, the Administrator may not
promulgate a redesignation of a nonattainment area unless ``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.'' On its face, the statute permits EPA to
not only consider Wisconsin's submittal and demonstration, but also
any other information the Agency has regarding emission reductions
in the area.
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EPA applied the same methodology in reviewing Wisconsin's request
as it did for the areas at issue in the Sierra Club case, and as it has
for the many redesignated areas across the country over the last three
decades. In our proposal, we discussed at length the various state and
Federal promulgated measures and the estimated precursor emission
reductions impacts attributable to each of those measures. 85 FR at
28555-58. The commenter does not dispute the permanence or
enforceability of any of the measures listed by EPA, nor do they refute
that the measures obtained the estimated reductions cited by EPA. The
commenter's sole focus was on WDNR's comparison of emission inventories
for 2011 (a nonattainment year) and 2017 (an attainment year) for
sources within the Shoreline Sheboygan area. To the extent that the
commenter is suggesting that the fact that ozone concentrations did not
decline proportionally to the emissions reductions implemented in the
Sheboygan County area means that those reductions had no impact on the
area's attainment, we disagree. Ozone concentrations do not typically
decline
[[Page 41408]]
proportionally with emissions reductions to both precursors, because
ozone formation chemistry, which involves photochemical reactions of
precursor species, is a complex nonlinear process. Therefore,
reductions of both NOX and VOC precursor emissions are not
likely to result in a proportional reduction in ozone. However,
selectively reducing the key anthropogenic precursor emissions that are
driving ozone formation, generally results in reduced ozone. As noted
by the commenter, meteorology and emissions of ozone precursors from
outside the nonattainment area both impact ozone concentrations in the
Sheboygan County area and can cause some variability from year to year.
But the influence of these factors does not negate the fact that the
permanent and enforceable precursor emission reductions from stationary
and mobile sources in Wisconsin and upwind states that contribute ozone
to the Sheboygan County area--all of which we pointed to in our
proposal--have in the aggregate caused the area to come into attainment
of the 2008 ozone NAAQS.
We also find no fault with Wisconsin's use of 2017 emissions within
the nonattainment area (i.e., the attainment inventory) for purposes of
illustrating the reduction in emissions in the area over time (from
2011 to 2017). We do not agree with the commenter that ``it is not
possible to determine that the 2017-2019 design value was the result of
emission reductions'' because Wisconsin did not provide emission
inventories for 2018 and 2019. The State's selection of one year of
emissions during a design value period indicating nonattainment and one
year of emissions during a design value period indicating attainment
showed quite simply that emissions had decreased substantially within
the area during that time period.
We do not agree with the commenter that it is appropriate or
necessary to expand the boundaries of the Shoreline Sheboygan area in
order to manage regional ozone pollution impacts along the shoreline of
Lake Michigan. Expanding nonattainment areas and imposing the
requirements that accompany a nonattainment area designation are not
the only tools to achieve emission reductions under the CAA; CAA
section 110(a)(2)(D)(i)(I), also known as the good neighbor provision,
requires states to eliminate emissions that significantly contribute to
nonattainment or interfere with maintenance in another state. We
acknowledge that the Shoreline Sheboygan area's ozone concentrations
are impacted by emissions from upwind states. WDNR's analysis includes
source apportionment modeling showing that, for anthropogenic emissions
within modeled source regions, upwind sources in Illinois contribute
the largest share of emissions. Under the authority of the good
neighbor provision, EPA has required emission reductions from Illinois
and other upwind states to address contribution to the Shoreline
Sheboygan area in regional interstate transport rulemakings such as the
Cross-State Air Pollution Rule (CSAPR) and the CSAPR Update. The CSAPR
Update, which took effect in 2017 (i.e. the beginning of the 3-year
period during which the Shoreline Sheboygan area began monitoring
attainment) was estimated to result in a 20% reduction in ozone season
NOX emissions from electric generating units in the eastern
United States. In addition, Wisconsin's submittal shows that between
2011 and 2017, NOX emissions from the multistate Chicago
nonattainment area for the 2008 ozone NAAQS decreased by 33%, and VOC
emissions from the Chicago area decreased by 18%. Much of this
reduction is likely attributable to the fact that the Chicago area is
itself a nonattainment area, subject to the same or similar control
requirements as the Shoreline Sheboygan area, which would further limit
any efficacy of expanding the Shoreline Sheboygan area.
Second, EPA disagrees that unusual ozone season meteorology is the
``likely significant contributor'' to the Sheboygan Shoreline area's
attainment of the 2008 ozone NAAQS. Similarly, EPA disagrees with the
commenter's assertion that meteorology in 2019, specifically,
significantly ``deviated from historical averages for wind direction
and temperature.'' Meteorology's impact on ozone formation and the
variability that that can cause in ozone concentrations from year to
year is expressly accounted for in EPA's form of the NAAQS. Attainment
of the 2008 ozone NAAQS, like the 1997 ozone NAAQS before it, is
measured by averaging the annual fourth-highest daily maximum 8-hour
average concentrations over a 3-year period. In our rulemaking
promulgating the 1997 ozone NAAQS, EPA noted the ``lack of year-to-year
stability'' inherent to the prior 1979 ozone NAAQS, and determined that
a form including a 3-year average would ``provide some insulation from
the impacts of extreme meteorological events that are conducive to
ozone formation.'' (62 FR 38856, July 18, 1997). Similarly, when EPA
revised the NAAQS in 2008, we recognized ``that it is important to have
a form that is stable and insulated from the impacts of extreme
meteorological events that are conducive to ozone formation. Such
instability can have the effect of reducing public health protection,
because frequent shifting in and out of attainment due of
meteorological conditions can disrupt an area's ongoing implementation
plans and associated control programs. Providing more stability is one
of the reasons that EPA moved to a concentration-based form in 1997.''
(73 FR 16435, March 27, 2008). We therefore observe that as a general
matter, some year-to-year variation in meteorology is expected, and
that EPA designed the form of the 2008 ozone NAAQS to accommodate that
variability.
We do not think that lower temperatures in 2019 was the cause of
the Shoreline Sheboygan area's attainment. The commenter's own analysis
shows that the average summer temperature across the years 2008 through
2018 was 61.9 degrees Fahrenheit, and the 2019 summer temperature was
60.6 degrees Fahrenheit. Rather than indicating that 2019 was an
outlier year in terms of temperature, the commenter's data shows that
2019 was a very typical year in terms of summer temperatures. According
to the commenter's analysis, the average summer temperature in 2019 was
only the third lowest out of 11 years. Further, EPA is determining that
the Shoreline Sheboygan area is attaining the 2008 ozone NAAQS based on
data from the 2017-2019 period; as shown in the commenter's analysis,
2017 and 2018 were among the five warmest out of 11 years. As discussed
above, EPA designed the form of the 2008 ozone NAAQS to accommodate
year-to-year variation in meteorology, including variability between
relatively cooler years and relatively warmer years.
In terms of wind direction, we acknowledge that southerly winds can
play a role on high ozone days in the Sheboygan Shoreline area. But it
is important to keep in mind that high ozone cannot form in the absence
of precursor emissions. The commenter contends that in 2019, the
average hourly wind direction at the Kohler Andrae site was 173
degrees, compared to the average hourly wind direction of 190 degrees
for six other years including 2009, 2010, 2012, 2013, 2016, and 2017.
Annual average hourly wind direction is not a meaningful parameter to
consider when analyzing high ozone episodes, particularly at the Kohler
Andrae site which is impacted by highly variable wind direction and
lake breezes, because it does not narrow in on wind
[[Page 41409]]
direction during the specific time periods that are contemporaneous
with high ozone. Further, wind direction alone is not a meaningful
parameter to consider in analyzing high ozone since it excludes other
important factors such as emissions, wind speed, atmospheric boundary
layer height, temperature inversion, etc. WDNR's February 11, 2020
submittal (available in the docket for this rulemaking) includes a
statistical study, known as a Classification and Regression Tree (CART)
analysis, conducted by the Lake Michigan Air Directors Consortium
(LADCO) on ozone data from the Shoreline Sheboygan area. LADCO's CART
analysis groups high ozone day data (i.e., over 50 ppb) based on
meteorological similarity, and shows that for every group, ozone levels
at the Kohler Andrae monitor have decreased over the 14-year period
from 2005-2018. Although highest ozone concentrations typically
occurred on days which experienced southerly winds and high
temperatures, those days also experienced the steepest declines in
ozone concentrations over the 14-year period. LADCO's CART analysis
shows that when the influence of meteorological variability is largely
removed, whether it is favorable or unfavorable meteorology, ozone
concentrations declined regardless, indicating that the downward trend
in ozone levels is attributable to reductions in precursor emissions.
Given the results of the LADCO analysis combined with the reasons
outlined above pertaining to 2019 meteorology as well as the form of
the NAAQS, EPA disagrees with the commenter's contention that unusual
meteorology is the primary cause of attaining ozone concentrations at
the Kohler Andrae monitor. Rather, EPA concludes that attainment is due
to permanent and enforceable reductions in precursor emissions from
within the Shoreline Sheboygan area and from upwind areas elsewhere in
Wisconsin and in other states during the relevant time period.
Lastly, EPA acknowledges the commenter's assertions that ozone
problems will not be solved through redesignations, that regional
solutions are required, and that coordinated cooperation between
stakeholders may lead to improved air quality. The Sheboygan County
area for the 2015 ozone NAAQS will retain its nonattainment
designation, and EPA will continue to address ozone problems along Lake
Michigan through implementation of the 2015 ozone NAAQS. EPA also
continues to implement programs addressing regional and interstate
transport of NOX, such as CSAPR. Finally, EPA encourages the
commenter to remain engaged with stakeholders in the effort to protect
human health and the environment.
III. What action is EPA taking?
EPA is determining that the Shoreline Sheboygan nonattainment area
is attaining the 2008 ozone NAAQS, based on quality-assured and
certified monitoring data for 2017-2019. EPA is approving Wisconsin's
2011 base year emissions inventory, emission statement certification
SIP, VOC RACT SIP, I/M certification SIP, and NOX RACT
certification SIP, and is determining that the area meets the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA is thus changing the legal designation of the Shoreline Sheboygan
area from nonattainment to attainment for the 2008 ozone NAAQS. EPA is
also approving, as a revision to the Wisconsin SIP, the State's
maintenance plan for the area. The maintenance plan is designed to keep
the Shoreline Sheboygan area in attainment of the 2008 ozone NAAQS
through 2032. EPA finds adequate and is approving the newly-established
2025 and 2032 MVEBs for the Shoreline Sheboygan area. Finally, EPA is
approving the VOC RACT SIP revisions included in Wisconsin's February
11, 2020 and April 1, 2020 submittals.
In accordance with 5 U.S.C. 553(d) of the Administrative Procedure
Act (APA), EPA finds there is good cause for these actions to become
effective immediately upon publication. The immediate effective date
for this action is authorized under both 5 U.S.C. 553(d)(1) and section
553(d)(3).
Section 553(d)(1) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . a substantive rule which grants or recognizes
an exemption or relieves a restriction.'' The purpose of this provision
is to ``give affected parties a reasonable time to adjust their
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed.
Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United
States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting
legislative history). However, when the agency grants or recognizes an
exemption or relieves a restriction, affected parties do not need a
reasonable time to adjust because the effect is not adverse. EPA has
determined that this rule relieves a restriction because this rule
permanently relieves the state of the requirement to submit certain
planning SIPs, such as an attainment demonstration and associated RACM,
RFP plans, contingency measures, and other planning elements related to
attainment.
Section 553(d)(3) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . as otherwise provided by the agency for good
cause.'' The purpose of this provision is to ``give affected parties a
reasonable time to adjust their behavior before the final rule takes
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099,
1104 (8th Cir. 1977) (quoting legislative history). Thus, in
determining whether good cause exists to waive the 30-day delay, an
agency should ``balance the necessity for immediate implementation
against principles of fundamental fairness which require that all
affected persons be afforded a reasonable amount of time to prepare for
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA
has determined that there is good cause for making this final rule
effective immediately because this rule does not create any new
regulatory requirements such that affected parties would need time to
prepare before the rule takes effect. This rule approves into the SIP
the VOC RACT SIP revisions included in Wisconsin's February 11, 2020
and April 1, 2020 submittals, which include Administrative Order AM-20-
02 for Kieffer & Co. Inc. and Administrative Order AM-20-03 for Kohler
Power Systems. These Administrative Orders were signed on February 4,
2020 and February 28, 2020, respectively, and have been effective and
enforceable since the dates of signature. The two affected sources,
therefore, do not require time to adjust. On balance, EPA finds
affected parties would benefit from the immediate suspension of the
requirement to submit certain planning SIPs, instead of delaying by 30
days the suspension of this requirement.
For these reasons, EPA finds good cause under both 5 U.S.C.
553(d)(1) and U.S.C. 553(d)(3) for these actions to become effective on
the date of publication of these actions.
IV. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the Wisconsin
Administrative Orders described in the amendments to 40 CFR part 52 set
forth below. EPA has made, and will continue
[[Page 41410]]
to make, these documents generally available through
www.regulations.gov, and at the EPA Region 5 Office (please contact the
person identified in the ``For Further Information Contact'' section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because it is not a significant regulatory
action under Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 8, 2020. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: July 1, 2020.
Cheryl Newton,
Deputy Regional Administrator, Region 5.
Title 40 CFR parts 52 and 81 are amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.2570 is amended by adding paragraph (c)(139) to read as
follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(139) On April 1, 2020, the Wisconsin Department of Natural
Resources submitted requests to incorporate Administrative Order AM-20-
02 for Kieffer & Co. Inc. and Administrative Order AM-20-03 for Kohler
Power Systems into the Wisconsin State Implementation Plan (SIP). These
orders establish, through permanent and enforceable emission limits and
other requirements, Reasonably Available Control Technology (RACT)
equivalency demonstrations for the facilities located in Sheboygan
County, Wisconsin.
(i) Incorporation by reference.
(A) Administrative Order AM-20-02, issued by the Wisconsin
Department of Natural Resources on February 4, 2020, to the Kieffer &
Co. Inc. facility located in Sheboygan, Wisconsin.
(B) Administrative Order AM-20-03, issued by the Wisconsin
Department of Natural Resources on February 28, 2020, to the Kohler
Power Systems facility located in Mosel, Sheboygan County, Wisconsin.
* * * * *
0
3. Section 52.2585 is amended by adding paragraph (mm) to read as
follows:
Sec. 52.2585 Control strategy: Ozone.
* * * * *
[[Page 41411]]
(mm) Redesignation. Approval--On February 11, 2020, Wisconsin
submitted a request to redesignate the Shoreline Sheboygan County area
to attainment of the 2008 8-hour ozone standard. As part of the
redesignation request, the State submitted a maintenance plan as
required by section 175A of the Clean Air Act. Elements of the section
175 maintenance plan include a contingency plan and an obligation to
submit a subsequent maintenance plan revision in eight years as
required by the Clean Air Act. The ozone maintenance plan also
establishes 2025 and 2032 Motor Vehicle Emission Budgets (MVEBs) for
the area. The 2025 MVEBs for the Inland Sheboygan County area are 0.50
tons per hot summer day for VOC and 1.00 tons per hot summer day for
NOX. The 2032 MVEBs for the Inland Sheboygan County area are
0.36 tons per hot summer day for VOC and 0.77 tons per hot summer day
for NOX.
* * * * *
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
4. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
5. In Sec. 81.350, the table entitled ``Wisconsin--2008 8-Hour Ozone
NAAQS [Primary and Secondary]'' is amended by revising the entry for
``Shoreline Sheboygan County, WI'' to read as follows:
Sec. 81.350 Wisconsin.
* * * * *
Wisconsin--2008 8-Hour Ozone NAAQS
[Primary and secondary]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ----------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Shoreline Sheboygan County, WI \2\ \5\... 7/10/2020 Attainment......
Sheboygan County (part):
Inclusive and east of the
following roadways going from
the northern county boundary to
the southern county boundary:
Highway 43, Wilson Lima Road,
Minderhaud Road, County Road KK/
Town Line Road, N 10th Street,
County Road A S/Center Avenue,
Gibbons Road, Hoftiezer Road,
Highway 32, Palmer Road/Smies
Road/Palmer Road, Amsterdam Road/
County Road RR, Termaat Road.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.
\5\ Attainment date is extended to July 20, 2019 for both Inland Sheboygan County, WI, and Shoreline Sheboygan
County, WI, nonattainment areas.
* * * * *
[FR Doc. 2020-14691 Filed 7-9-20; 8:45 am]
BILLING CODE 6560-50-P