Air Plan Approval; Wisconsin; Redesignation of the Inland Sheboygan, WI Area to Attainment of the 2008 Ozone Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) finds that the Inland 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). WDNR submitted this request on October 9, 2019. EPA is approving, as a revision to the Wisconsin State Implementation Plan (SIP), the State's plan for maintaining the 2008 ozone NAAQS through 2030 in the Inland Sheboygan area. EPA finds adequate and is approving Wisconsin's 2020 and 2030 volatile organic compound (VOC) and oxides of nitrogen (NO_X) Motor Vehicle Emission Budgets (MVEBs) for the Inland Sheboygan. Finally, EPA is approving the Wisconsin SIP submission as meeting the applicable base year inventory requirement, emission statement requirements, VOC Reasonably Available Control Technology (RACT) requirements, motor vehicle inspection and maintenance (I/M) program requirements, and NO_X RACT requirements.

DATES:

This final rule is effective on July 10, 2020.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2019-0557. All documents in the docket 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, svingen.eric@epa.gov.

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 October 9, 2019 submission from Wisconsin requesting redesignation of the Inland Sheboygan area to attainment for the 2008 ozone standard. The background for this action is discussed in detail in EPA's proposal, dated April 27, 2020 (85 FR 23274). 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 is equal to or less than 0.075 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.) Under the CAA, EPA may redesignate nonattainment areas to attainment if complete, quality-assured data are available to determine that the area has attained the standard and meets the other CAA redesignation requirements in section 107(d)(3)(E). The proposed rule 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. Preliminary data for 2020 show that the area continues to attain the standard. In the maintenance plan submitted for the area, Wisconsin has demonstrated that the ozone standard will be maintained in the area through 2030. Wisconsin has adopted 2020 and 2030 VOC and NO_X MVEBs for the area that are supported by Wisconsin's maintenance demonstration. With these approvals of Wisconsin's SIP submissions, EPA finds that the applicable requirements of the SIP are fully approved.

II. What comments did we receive on the proposed rule?

Public comments on the April 27, 2020 proposed rule were due by May 27, 2020. During the comment period EPA received three comments in support of our action, as well as one adverse comment. EPA received an additional supportive comment from Wisconsin Manufacturers & Commerce; however, this comment was submitted on May 29, 2020, after the comment period had ended. Because EPA is obligated to respond only to comments that are both adverse and timely, the supportive comment submitted after the close of the comment period is not relevant to this action. A summary of the adverse comment and EPA's response is provided below.

Comment: Sheboygan Ozone Reduction Alliance (SORA), a citizen group focused on reducing air pollution and advocating for public health, provided three reasons for opposing this action.

First, SORA contends that the Inland Sheboygan area was created retroactively in 2019 without adequate scientific basis. The commenter writes that the boundary of the Inland Sheboygan area for the 2008 ozone NAAQS was based on the boundary for the Sheboygan County nonattainment area for the 2015 ozone NAAQS. The commenter contends that the boundary for the Sheboygan County nonattainment area for the 2015 ozone NAAQS was created without adequate basis, that the nonattainment area for the 2015 ozone NAAQS excludes several major point sources, and that EPA must resolve litigation regarding designations for the 2015 ozone NAAQS before EPA can make a determination of attainment for areas created as a result of, or based on, designations for the 2015 ozone NAAQS.

Second, SORA contends that the Sheboygan Haven monitor may not be properly sited to capture maximum ozone concentrations. The commenter contends that neither WDNR nor EPA have demonstrated that the Sheboygan Haven monitor is capable of capturing maximum ozone concentrations in the nonattainment area, and that such a capability was never scrutinized because the Sheboygan Haven monitor was originally sited as a secondary monitor for the original full-county nonattainment area. The commenter states that on six days during the 1991 Lake Michigan Ozone Study (LMOS), a monitor 8.6 miles inland from the shoreline recorded ozone values greater than or equal to the values recorded at the shoreline monitor. Similarly, from 1999 to 2003, a monitor 5.3 miles from the shoreline also recorded numerous ozone values greater than or equal to the values recorded at the shoreline monitor. The commenter acknowledges that ozone chemistry may have changed over the last three decades but contends that the burden of proof should rest on EPA and WDNR to demonstrate that values recorded at the Sheboygan Haven monitor are representative of maximum ozone concentrations in the Inland Sheboygan area.

Third, SORA contends that emissions from the Inland Sheboygan area contribute to the nonattainment of downwind areas. The commenter states that a redesignation to attainment would reduce permitting requirements, which could exacerbate the effects of emissions from the Inland Sheboygan area on downwind nonattainment areas. The commenter believes that the existence of two separate nonattainment areas in Sheboygan County makes it more difficult to effectively manage air quality issues.

Response: EPA thanks SORA for its comments. As discussed below, EPA finds that approval of Wisconsin's request to redesignate the Inland Sheboygan area is consistent with the requirements of CAA section 107(d)(3)(E).

First, EPA disagrees that the Inland Sheboygan area was created retroactively without adequate scientific basis. On July 15, 2019, EPA revised the 2008 ozone NAAQS designation for the original full-county Sheboygan nonattainment area, by splitting the original area into two distinct nonattainment areas that together cover the identical geographic area of the original nonattainment area (84 FR 33699). In determining whether to take this action under CAA section 107(d)(3)(D), EPA considered the same factors Congress directed EPA to consider under CAA section 107(d)(3)(A), including “air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” In a 22-page Technical Support Document (TSD) contained in the docket for that rulemaking, EPA provided the technical basis for its revision, which was based on an analysis of factors including air quality data, emissions and emissions-related data, meteorology, geography/topography, and jurisdictional boundaries.

In defining the boundaries of the Inland Sheboygan area and Shoreline Sheboygan area for the 2008 ozone NAAQS, EPA considered existing jurisdictional boundaries, which can provide easily identifiable and recognized boundaries for purposes of implementing the NAAQS. After considering all relevant factors, EPA chose to adopt a boundary for the two separate areas for the 2008 ozone NAAQS that aligned with the jurisdictional boundary established by the partial-county Sheboygan County area for the 2015 ozone NAAQS. However, the July 15, 2019 action was based on EPA's technical analysis specific to the 2008 ozone NAAQS, as provided in the TSD. During the public comment period on that rulemaking, EPA received no adverse comments, and EPA's final action was not challenged in court.

We therefore disagree that the current litigation in the D.C. Circuit regarding the 2015 ozone designations (Clean Wisconsin et al. v. U.S. Environmental Protection Agency et al., Case No. 18-1203 (D.C. Cir.)) has any bearing on this redesignation. One of the claims at issue in the litigation is whether EPA's partial-county designation of the Sheboygan area under the 2015 ozone NAAQS was supported by law. But even if the court were to grant challenges to the designation for the 2015 ozone NAAQS, that finding would not impact the existing boundaries of the Inland Sheboygan nonattainment area for the 2008 ozone NAAQS. The claims raised regarding EPA's technical analysis associated with designations for the 2015 standard are irrelevant to this redesignation action, which is focused on whether the Inland Sheboygan area has met the statutory criteria of CAA section 107(d)(3)(E).

Second, EPA disagrees that it may not rely on quality-assured, certified air quality monitoring data from the Sheboygan Haven monitor to determine whether the Inland Sheboygan area is attaining. The Sheboygan Haven monitor began operation in 2014, has been in continuous operation since, and in the many opportunities for public comment regarding this monitor, nobody has raised any concerns about the monitor site.

Each year the state submits to EPA an Air Monitoring Network Plan, which is subject to public comment (see 40 CFR 58.10 ), and in none of five plan reviews conducted since the monitor was sited did any member of the public raise concerns regarding the representativeness or location of the Sheboygan Haven monitor. In 2019 SORA commented on Wisconsin's most recent Air Monitoring Network Plan, but only raised concerns regarding the proposed discontinuation of the Sheboygan Kohler Andrae monitor along the Lake Michigan shoreline. Their comment did not indicate any concerns about the Sheboygan Haven monitor.

EPA also stated in its proposal to split Sheboygan County into two nonattainment areas for the 2008 ozone NAAQS that only one air quality monitor would be in each of the two new nonattainment areas (84 FR 4422, 4424 and 4425 ), and received no comments. In that action, EPA also relied on the Sheboygan Haven monitor to propose a clean data determination for the Inland Sheboygan area, based on the monitor's attaining 2015-2017 design value, which we later finalized based on the area's 2016-2018 attaining design value. EPA received no comments on its proposed determination that the area was attaining based on air quality monitoring data from the Sheboygan Haven monitor. We therefore do not agree that it is unreasonable for EPA to rely on data from the Sheboygan Haven monitor as representative of air quality in the Inland Sheboygan area.

We also do not agree that the Sheboygan Haven monitor's original siting as a secondary monitor in the full-county 2008 ozone NAAQS area is dispositive of whether it can be relied upon now as the Inland Sheboygan area's sole monitor. As provided in the 2015 Air Monitoring Network Plan, the Sheboygan Haven site's objective was population exposure, and its area of representativeness was “exposure on a neighborhood scale for ozone.” The representativeness “neighborhood scale” is defined in appendix D to 40 CFR part 58 as representative of “conditions throughout some reasonably homogenous urban sub-region” and the definition further provides that “a site located in the neighborhood scale may also experience peak concentration levels within a metropolitan area.”

We do not agree that the two nonextant Sheboygan County monitors raised by the commenter indicate that the Sheboygan Haven monitor is an unreliable indicator of ozone concentrations in the Inland Sheboygan area. The first, from the 1991 LMOS study, was located 8.6 miles inland from the shoreline; the second, which operated from 1999 to 2003, was located 5.3 miles from the shoreline. During the time that these monitors were active, they observed ozone concentrations that would have been exceedances of the 2008 ozone NAAQS. On several days these monitors recorded ozone values greater than or equal to the values recorded at the shoreline monitor. However, we do not think these isolated, outdated readings at monitors that are no longer operational are more representative or should overrule the Sheboygan Haven monitor, which is part of the state's approved Air Monitoring Network. Ozone values in Sheboygan County have decreased significantly over the past three decades. EPA's April 27, 2020 proposed rule includes a discussion of the permanent and enforceable regulatory control measures, including reductions from vehicle emissions standards and stationary source NO_X trading programs implemented since 2000, which caused the improvement in air quality. Given those major changes in emissions, and without a technical basis to do so, we do not think it is reasonable to assume that ozone chemistry in this region necessarily behaves in the same way it may have in the 1990s and early 2000s. Nor do we think it advisable to rely on inferences from old data over newer monitored air quality data.

Importantly, EPA notes that the commenter does not allege that any part of the area is not currently meeting the 2008 ozone NAAQS. Consistent with the requirements of CAA section 107(d)(3)(E), EPA finds that the Inland Sheboygan area is attaining the 2008 ozone NAAQS.

Third, although the commenter did not specify, we assume the “reduced permitting requirements” cited by SORA that would result from the area's redesignation is the change from the nonattainment new source review (NNSR) program to the prevention of significant deterioration (PSD) program for new or modified major stationary sources. An area's designation status dictates which of these programs apply (NNSR for nonattainment areas and PSD for attainment areas), and nothing in the CAA allows EPA to continue to impose NNSR in an area where all five statutory criteria for redesignation of that area to attainment have been met. Nor does the CAA suggest that a potential impact from the change in an area's permitting regime after that area is redesignated, on other in-state, downwind nonattainment areas is a valid basis for disapproving that area's request for redesignation. Finally, we note that while EPA's technical analysis for the 2015 ozone NAAQS did indicate some contribution from the Inland Sheboygan area to the Door County, WI area, the Manitowoc County, WI area, as well as the Sheboygan County, WI area (which covers the identical geographic area as the Shoreline Sheboygan area for the 2008 ozone NAAQS), that analysis was performed for a more stringent standard, and with respect to the 2008 ozone NAAQS, all three of those areas have attaining design values for the 2017-2019 period.

Finally, as stated in our April 27, 2020 proposed rule, EPA did not reopen our final July 15, 2019 action to split the original Sheboygan nonattainment area into two distinct nonattainment areas, so comments to that effect are beyond the scope of this action. In this action, EPA is only evaluating the State's redesignation request under the criteria at CAA section 107(d)(3)(E).

III. What action is EPA taking?

EPA is determining that the Inland 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 NO_X 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 Inland 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 Inland Sheboygan area in attainment of the 2008 ozone NAAQS through 2030. EPA finds adequate and is approving the newly-established 2020 and 2030 MVEBs for the Inland Sheboygan area.

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 relieves sources in the area of NNSR permitting requirements; instead, upon the effective date of this action, sources will be subject to less restrictive PSD permitting requirements.

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. On balance, EPA finds affected parties would benefit from the immediate ability to comply with PSD requirements, instead of delaying by 30 days the transition from NNSR to PSD.

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. 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), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

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

For the reasons stated in the preamble, EPA amends Title 40 CFR parts 52 and 81 as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

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

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

4. In Section 81.350, amend the table “Wisconsin—2008 8-Hour Ozone NAAQS [Primary and Secondary]” by revising the entry for “Inland Sheboygan County, WI” to read as follows: