

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2007-0957; FRL-8504-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0957, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    2. E-mail: mooney.john@epa.gov.
    3. Fax: (312) 886-5824.
    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77

[[Page 70256]]

West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-0957. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental Protection 

Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We 
recommend that you telephone Kathleen D'Agostino, Environmental 
Engineer, at (312) 886-1767 before visiting the Region 5 office.

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

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

Table of Contents

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

I. What Should I Consider as I Prepare My Comments for EPA?

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

II. What Action Is EPA Proposing To Take?

    EPA is proposing to take several related actions. EPA is proposing 
to make a determination that the Kewaunee County nonattainment area has 
attained the 8-hour ozone standard and that this area has met the 
requirements for redesignation under section 107(d)(3)(E) of the CAA. 
EPA is thus proposing to approve Wisconsin's request to change the 
legal designation of the Kewaunee County area from nonattainment to 
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve 
Wisconsin's maintenance plan SIP revision for Kewaunee County (such 
approval being one of the CAA criteria for redesignation to attainment 
status). The maintenance plan is designed to keep the Kewaunee County 
area in attainment of the ozone NAAQS through 2018. Additionally, EPA 
is proposing to approve the newly-established 2012 and 2018 MVEBs for 
the Kewaunee County area. The adequacy comment period for the MVEBs 
began on September 24, 2007, with EPA's posting of the availability of 
the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm
). The adequacy comment period for 

these MVEBs ended on October 24, 2007. EPA did not receive any requests 
for this submittal, or adverse comments on this submittal during the 
adequacy comment period. In a letter dated November 6, 2007, EPA 
informed WDNR that we had found the 2012 and 2018 MVEBs to be adequate 
for use in transportation conformity analyses. Please see the Adequacy 
section of this rulemaking for further explanation on this process. 
Therefore, we find adequate, and are proposing to approve, the State's 
2012 and 2018 MVEBs for transportation conformity purposes.

III. What Is the Background for These Actions?

A. What Is the General Background Information?

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

[[Page 70257]]

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

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

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

[[Page 70258]]

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

IV. What Are the Criteria for Redesignation?

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

``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum 
from William G. Laxton, Director Technical Support Division, June 18, 
1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide 
Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to 
Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation Ozone and 
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T. 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or 
After November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting 
Assistant Administrator for Air and Radiation, September 17, 1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and 
CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting 
Director, Air Quality Management Division, to Air Division Directors, 
Regions 1-10, dated November 30, 1993.
``Part D New Source Review (part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard,'' Memorandum from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, May 10, 1995.

[[Page 70259]]

V. Why Is EPA Proposing To Take These Actions?

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

VI. What Is the Effect of These Actions?

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

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

A. Attainment Determination and Redesignation

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

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

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

[[Page 70260]]

until a redesignation to attainment is approved, but are not required 
as a prerequisite to redesignation. See section 175A(c) of the CAA. 
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 
25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis 
area to attainment of the 1-hour ozone NAAQS).
    General SIP requirements. Section 110(a) of title I of the CAA 
contains the general requirements for a SIP. Section 110(a)(2) provides 
that the implementation plan submitted by a state must have been 
adopted by the state after reasonable public notice and hearing, and 
that, among other things, it includes enforceable emission limitations 
and other control measures, means or techniques necessary to meet the 
requirements of the CAA; provides for establishment and operation of 
appropriate devices, methods, systems and procedures necessary to 
monitor ambient air quality; provides for implementation of a source 
permit program to regulate the modification and construction of any 
stationary source within the areas covered by the plan; includes 
provisions for the implementation of part C, Prevention of Significant 
Deterioration (PSD) and part D, NSR permit programs; includes criteria 
for stationary source emission control measures, monitoring, and 
reporting; includes provisions for air quality modeling; and provides 
for public and local agency participation in planning and emission 
control rule development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain measures 
to prevent sources in a state from significantly contributing to air 
quality problems in another state. To implement this provision, EPA has 
required certain states to establish programs to address transport of 
air pollutants (NOX SIP Call,\1\ Clean Air Interstate Rule 
(CAIR) (70 FR 25162)). However, the section 110(a)(2)(D) requirements 
for a state are not linked with a particular nonattainment area's 
designation and classification. EPA believes that the requirements 
linked with a particular nonattainment area's designation and 
classification are the relevant measures to evaluate in reviewing a 
redesignation request. When the transport SIP submittal requirements 
are applicable to a state, they will continue to apply to the state 
regardless of the attainment designation of any one particular area in 
the state. Therefore, we believe that these requirements should not be 
construed to be applicable requirements for purposes of redesignation. 
Further, we believe that the other section 110 elements described above 
that are not connected with nonattainment plan submissions and not 
linked with an area's attainment status are also not applicable 
requirements for purposes of redesignation. A state remains subject to 
these requirements after an area is redesignated to attainment. We 
conclude that only the section 110 and part D requirements which are 
linked with a particular area's designation and classification are the 
relevant measures which we may consider in evaluating a redesignation 
request. This approach is consistent with EPA's existing policy on 
applicability of conformity and oxygenated fuels requirements for 
redesignation purposes, as well as with section 184 ozone transport 
requirements. See Reading, Pennsylvania, proposed and final rulemakings 
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); 
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 20458, May 7, 1996); 
and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). 
See also the discussion on this issue in the Cincinnati ozone 
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh ozone 
redesignation (66 FR 50399, October 19, 2001).
---------------------------------------------------------------------------

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

    As discussed above, we believe that section 110 elements which are 
not linked to the area's nonattainment status are not applicable for 
purposes of redesignation. Because there are no section 110 
requirements linked to the part D requirements for 8-hour ozone 
nonattainment areas that have become due, as explained below, there are 
no part D requirements applicable for purposes of redesignation under 
the 8-hour standard.
    Part D Requirements. EPA has determined that the Wisconsin SIP 
meets applicable SIP requirements under part D of the CAA, since no 
requirements applicable for purposes of redesignation became due for 
the 8-hour ozone standard prior to WDNR's submission of the 
redesignation request for the Kewaunee County area. Under part D, an 
area's classification determines the requirements to which it will be 
subject. Subpart 1 of part D, found in sections 172-176 of the CAA, 
sets forth the basic nonattainment requirements applicable to all 
nonattainment areas. Section 182 of the CAA, found in subpart 2 of part 
D, establishes additional specific requirements depending on the area's 
nonattainment classification. The Kewaunee County area was classified 
as a subpart 1 nonattainment area, and, therefore, subpart 2 
requirements do not apply.
    Part D, subpart 1 applicable SIP requirements. For purposes of 
evaluating these redesignation requests, the applicable part D, subpart 
1 SIP requirements for the Kewaunee County area are contained in 
sections 172(c)(1)-(9). A thorough discussion of the requirements 
contained in section 172 can be found in the General Preamble for 
Implementation of Title I (57 FR 13498, April 16, 1992).
    No requirements applicable for purposes of redesignation under part 
D became due prior to submission of the redesignation request, and, 
therefore, none are applicable to the areas for purposes of 
redesignation. Since the State of Wisconsin has submitted a complete 
ozone redesignation request for the Kewaunee County area prior to the 
deadline for any submissions required for purposes of redesignation, we 
have determined that these requirements do not apply to the Kewaunee 
County area for purposes of redesignation.
    Furthermore, EPA has determined that, since PSD requirements will 
apply after redesignation, areas being redesignated need not comply 
with the requirement that a NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
NAAQS without part D NSR. A more detailed rationale for this view is 
described in a memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation, dated October 14, 1994, entitled, ``Part D New 
Source Review Requirements for Areas Requesting Redesignation to 
Attainment.'' Wisconsin has demonstrated that the area to be 
redesignated will be able to maintain the standard without part D NSR 
in effect; therefore, EPA concludes that the State need not have a 
fully approved part D NSR program prior to approval of the 
redesignation request. The State's PSD program will become effective in 
the Kewaunee County area upon redesignation to attainment. See 
rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); 
Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); 
Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, 
Michigan (61 FR 31834-31837, June 21, 1996).
    Section 176 conformity requirements. Section 176(c) of the CAA 
requires states to establish criteria and

[[Page 70261]]

procedures to ensure that federally-supported or funded activities, 
including highway projects, conform to the air quality planning goals 
in the applicable SIPs. The requirement to determine conformity applies 
to transportation plans, programs and projects developed, funded or 
approved under title 23 of the U.S. Code and the Federal Transit Act 
(transportation conformity) as well as to all other federally-supported 
or funded projects (general conformity). State conformity revisions 
must be consistent with federal conformity regulations relating to 
consultation, enforcement and enforceability, which EPA promulgated 
pursuant to CAA requirements.
    EPA believes that it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) for two reasons. First, the 
requirement to submit SIP revisions to comply with the conformity 
provisions of the CAA continues to apply to areas after redesignation 
to attainment since such areas would be subject to a section 175A 
maintenance plan. Second, EPA's federal conformity rules require the 
performance of conformity analyses in the absence of federally-approved 
state rules. Therefore, because areas are subject to the conformity 
requirements regardless of whether they are redesignated to attainment 
and, because they must implement conformity under federal rules if 
state rules are not yet approved, EPA believes it is reasonable to view 
these requirements as not applying for purposes of evaluating a 
redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), 
upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec. 
7, 1995) (Tampa, Florida).
    EPA approved Wisconsin's general and transportation conformity SIPs 
on July 29, 1996 (61 FR 39329) and August 27, 1996 (61 FR 43970), 
respectively. Wisconsin has submitted onroad motor vehicle budgets for 
the Kewaunee County area of 0.43 and 0.32 tpd VOC and 0.80 and 0.47 tpd 
NOX for the years 2012 and 2018, respectively. The area must 
use the MVEBs from the maintenance plan in any conformity determination 
that is effective on or after the effective date of the maintenance 
plan approval. Thus, the Kewaunee County area has satisfied all 
applicable requirements under section 110 and part D of the CAA.
b. The Kewaunee County Area Has a Fully Approved Applicable SIP Under 
Section 110(k) of the CAA
    EPA has fully approved the Wisconsin SIP for the Kewaunee County 
area under section 110(k) of the CAA for all requirements applicable 
for purposes of redesignation. EPA may rely on prior SIP approvals in 
approving a redesignation request (See the September 4, 1992 John 
Calcagni memorandum, page 3, Southwestern Pennsylvania Growth Alliance 
v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), Wall v. EPA, 265 
F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve 
in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 
12, 2003). Since the passage of the CAA of 1970, Wisconsin has adopted 
and submitted, and EPA has fully approved, provisions addressing the 
various required SIP elements applicable to the Kewaunee County area 
under the 1-hour ozone standard. No Kewaunee County area SIP provisions 
are currently disapproved, conditionally approved, or partially 
approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable 
Reductions in Emissions Resulting From Implementation of the SIP and 
Applicable Federal Air Pollution Control Regulations and Other 
Permanent and Enforceable Reductions (Section 107(d)(3)(E)(iii))
    EPA finds that Wisconsin has demonstrated that the observed air 
quality improvement in the Kewaunee County area is due to permanent and 
enforceable reductions in emissions resulting from implementation of 
the SIP, federal measures, and other state-adopted measures.
    In making this demonstration, the State has calculated the change 
in emissions between 2002, one of the years used to designate the area 
as nonattainment, and 2005, one of the years the Kewaunee County area 
monitored attainment. The reduction in emissions and the corresponding 
improvement in air quality over this time period can be attributed to a 
number of regulatory control measures that Kewaunee County and upwind 
areas have implemented in recent years. The Kewaunee County area is 
impacted by the transport of ozone and ozone precursors from upwind 
areas. Therefore, local controls as well as controls implemented in 
upwind areas are relevant to the improvement in air quality in the 
Kewaunee County area.
a. Permanent and Enforceable Controls Implemented
    The following is a discussion of permanent and enforceable measures 
that have been implemented in the areas:
    NOX rules. Wisconsin adopted NOX controls for 
large existing sources and established emissions standards for new 
sources as part of their rate of progress plan under the 1-hour ozone 
standard.
    Federal Emission Control Measures. Reductions in VOC and 
NOX emissions have occurred statewide and in upwind areas as 
a result of federal emission control measures, with additional emission 
reductions expected to occur in the future. Federal emission control 
measures include: Maximum Achievable Control Technology Standards, the 
National Low Emission Vehicle (NLEV) program, Tier 2 emission standards 
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, 
and heavy-duty diesel engine standards. In addition, in 2004, EPA 
issued the Clean Air Non-road Diesel Rule (69 FR 38958 (July 29, 
2004)). EPA expects this rule to reduce off-road diesel emissions 
through 2010, with emission reductions starting in 2008.
    Control Measures in Upwind Areas. On October 27, 1998 (63 FR 
57356), EPA issued a NOX SIP call requiring the District of 
Columbia and 22 states to reduce emissions of NOX. The 
reduction in NOX emissions has resulted in lower 
concentrations of transported ozone entering the Kewaunee County area. 
Emission reductions resulting from regulations developed in response to 
the NOX SIP call are permanent and enforceable.
b. Emission Reductions
    Wisconsin is using 2002 for the nonattainment inventory and 2005, 
one of the years used to demonstrate monitored attainment of the NAAQS, 
for the attainment inventory. WDNR prepared comprehensive inventories 
for both 2002 and 2005 for Kewaunee County as part of a larger 
inventory effort. Point source inventories were developed using source 
specific data. Area source emissions were estimated based on various 
activity data compiled by the Census Bureau, the Energy Information 
Administration, the Bureau of Economic Analysis, and several Wisconsin 
State agencies. Nonroad mobile emissions were generated using EPA's 
National Mobile Inventory Model (NMIM) and adding emissions estimates 
for aircraft, commercial marine vessels, and railroads, three nonroad 
categories not included in NMIM. Onroad mobile

[[Page 70262]]

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

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


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


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

    Table 5 shows that the Kewaunee County area reduced VOC emissions 
by 0.4 tpd and NOX emissions by 0.4 tpd between 2002 and 
2005. In addition, upwind areas in Wisconsin reduced VOC emissions by 
38.0 tpd and NOX emissions by 77.0 tpd between 2002 and 
2005. Based on the information summarized above, Wisconsin has 
adequately demonstrated that the improvement in air quality is due to 
permanent and enforceable emissions reductions.
4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section 
175a of the CAA (Section 107(d)(3)(E)(iv))
    In conjunction with its request to redesignate the Kewaunee County 
nonattainment area to attainment status, Wisconsin submitted a SIP 
revision to provide for the maintenance of the 8-hour ozone NAAQS in 
the area through 2018.
a. What is required in a maintenance plan?
    Section 175A of the CAA sets forth the required elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. Under section 175A, the plan must demonstrate continued 
attainment of the applicable NAAQS for at least ten years after the 
Administrator approves a redesignation to attainment. Eight years after 
the redesignation, the state must submit a revised maintenance plan 
which demonstrates that attainment will continue to be maintained for 
ten years following the initial ten-year maintenance period. To address 
the possibility of future NAAQS violations, the maintenance plan must 
contain contingency measures with a schedule for implementation as EPA 
deems necessary to assure prompt correction of any future 8-hour ozone 
violations.
    The September 4, 1992, John Calcagni memorandum provides additional 
guidance on the content of a

[[Page 70263]]

maintenance plan. The memorandum clarifies that an ozone maintenance 
plan should address the following items: The attainment VOC and 
NOX emissions inventories, a maintenance demonstration 
showing maintenance for the ten years of the maintenance period, a 
commitment to maintain the existing monitoring network, factors and 
procedures to be used for verification of continued attainment of the 
NAAQS, and a contingency plan to prevent or correct future violations 
of the NAAQS.
b. Attainment Inventory
    The WDNR developed an emissions inventory for 2005, one of the 
years Wisconsin used to demonstrate monitored attainment of the 8-hour 
NAAQS, as described above. The attainment level of emissions is 
summarized in Table 4, above.
c. Demonstration of Maintenance
    Wisconsin submitted with the redesignation request a revision to 
the 8-hour ozone SIP to include a maintenance plan for the Kewaunee 
County area, in compliance with section 175A of the CAA. This 
demonstration shows maintenance of the 8-hour ozone standard through 
2018 by assuring that current and future emissions of VOC and 
NOX for the Kewaunee County area remain at or below 
attainment year emission levels. A maintenance demonstration need not 
be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), 
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 
53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 
12, 2003).
    Wisconsin is using projected emissions inventories for the years 
2012 and 2018 to demonstrate maintenance. Point and area source 
emissions were projected from the 2005 base year using growth factors. 
Nonroad mobile emissions were generated for 2012 and 2018 using NMIM 
and grown emissions for aircraft, commercial marine vessels, and 
railroads were added in. Onroad mobile source emissions projections 
were created using MOBILE6.2. Emissions estimates are presented in 
Table 6 below.

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

    The emission projections show that WDNR does not expect emissions 
in the Kewaunee County area to exceed the level of the 2005 attainment 
year inventory during the maintenance period. In the Kewaunee County 
area, WDNR projects that VOC and NOX emissions will decrease 
by 0.58 tpd and 1.04 tpd, respectively.
    As part of its maintenance plan, the State elected to include a 
``safety margin'' for the area. A ``safety margin'' is the difference 
between the attainment level of emissions (from all sources) and the 
projected level of emissions (from all sources) in the maintenance plan 
which continues to demonstrate attainment of the standard. The 
attainment level of emissions is the level of emissions during one of 
the years in which the area met the NAAQS. The Kewaunee County area 
attained the 8-hour ozone NAAQS during the 2004-2006 time period. 
Wisconsin used 2005 as the attainment level of emissions for the area. 
In the maintenance plan, WDNR projected emission levels for 2018. For 
Kewaunee County, the emissions from point, area, nonroad, and mobile 
sources in 2005 equaled 3.7 tpd of VOC. WDNR projected VOC emissions 
for the year 2018 to be 3.12 tpd of VOC. The SIP submission 
demonstrates that the Kewaunee County area will continue to maintain 
the standard with emissions at this level. The safety margin for VOC is 
calculated to be the difference between these amounts or, in this case, 
0.58 tpd of VOC for 2018. By this same method, 1.04 tpd (i.e., 3.01 tpd 
less 2.41 tpd) is the safety margin for NOX for 2018. The 
safety margin, or a portion thereof, can be allocated to any of the 
source categories, as long as the total attainment level of emissions 
is maintained.
d. Monitoring Network
    Wisconsin currently operates one ozone monitor in Kewaunee County. 
Wisconsin has committed to continue to operate and maintain an approved 
ozone monitoring network in Kewaunee. WDNR has also committed to 
consult with EPA regarding any changes in siting that may become 
necessary in the future. WDNR will continue to quality assure 
monitoring data in accordance with 40 CFR part 58 and enter all data 
into the Air Quality System on a timely basis in accordance with 
federal guidelines.
e. Verification of Continued Attainment
    Continued attainment of the ozone NAAQS in the Kewaunee County area 
depends, in part, on the State's efforts toward tracking indicators of 
continued attainment during the maintenance period. Wisconsin's plan 
for verifying continued attainment of the 8-hour standard in the 
Kewaunee County area consists of plans to continue ambient ozone 
monitoring in accordance with the requirements of 40 CFR part 58. The 
State will also evaluate future VOC and NOX emissions 
inventories for increases over 2005 levels.
f. Contingency Plan
    The contingency plan provisions are designed to promptly correct or 
prevent a violation of the NAAQS that might occur after redesignation 
of an area to attainment. Section 175A of the CAA requires that a 
maintenance plan include such contingency measures as EPA deems 
necessary to assure that the state will promptly correct a violation of 
the NAAQS that occurs after redesignation. The maintenance plan should 
identify the contingency measures to be adopted, a schedule and 
procedure for adoption and implementation of the contingency measures, 
and a time limit for action by

[[Page 70264]]

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

B. Adequacy of Wisconsin's MVEBs

    Under the CAA, states are required to submit, at various times, 
control strategy SIP revisions and ozone maintenance plans for ozone 
nonattainment areas and for areas seeking redesignations to attainment 
of the ozone standard. These emission control strategy SIP revisions 
(e.g., reasonable further progress SIP and attainment demonstration SIP 
revisions) and ozone maintenance plans create MVEBs based on onroad 
mobile source emissions for criteria pollutants and/or their precursors 
to address pollution from cars and trucks. The MVEBs are the portions 
of the total allowable emissions that are allocated to highway and 
transit vehicle use that, together with emissions from other sources in 
the area, will provide for attainment or maintenance.
    Under 40 CFR Part 93, a MVEB for an area seeking a redesignation to 
attainment is established for the last year of the maintenance plan. 
The MVEB serves as a ceiling on emissions from an area's planned 
transportation system. The MVEB concept is further explained in the 
preamble to the November 24, 1993, transportation conformity rule (58 
FR 62188). The preamble also describes how to establish the MVEB in the 
SIP and how to revise the MVEB if needed.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the SIP that addresses emissions from cars 
and trucks. Conformity to the SIP means that transportation activities 
will not cause new air quality violations, worsen existing air quality 
violations, or delay timely attainment of the NAAQS. If a 
transportation plan does not conform, most new transportation projects 
that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment 
strategies, rate-of-progress plans, and maintenance plans, EPA must 
affirmatively find that the MVEBs are ``adequate'' for use in 
determining transportation conformity. Once EPA affirmatively finds the 
submitted MVEBs to be adequate for transportation conformity purposes, 
the MVEBs are used by state and federal agencies in determining whether 
proposed transportation projects conform to the SIP as required by 
section 176(c) of the CAA. EPA's substantive criteria for determining 
the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining adequacy of a MVEB consists of three 
basic steps: (1) Providing public notification of a SIP submission; (2) 
providing the public the opportunity to comment on the MVEB during a 
public comment period; and, (3) EPA's finding of adequacy. The process 
of determining the adequacy of submitted SIP MVEBs was initially 
outlined in EPA's May 14, 1999 guidance, ``Conformity Guidance on 
Implementation of March 2, 1999, Conformity Court Decision.'' This 
guidance was codified in the Transportation Conformity Rule Amendments 
for the ``New 8-Hour Ozone and PM 2.5 National Ambient

[[Page 70265]]

Air Quality Standards and Miscellaneous Revisions for Existing Areas; 
Transportation Conformity Rule Amendments--Response to Court Decision 
and Additional Rule Change,'' published on July 1, 2004 (69 FR 40004). 
EPA follows this guidance and rulemaking in making its adequacy 
determinations.
    The Kewaunee County area's maintenance plan contains new VOC and 
NOX MVEBs for the years 2012 and 2018. The availability of 
the SIP submission with these 2012 and 2018 MVEBs was announced for 
public comment on EPA's Adequacy Web page on September 24, 2007 at: 
http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA 

public comment period on adequacy of the 2012 and 2018 MVEBs for the 
Kewaunee County area closed on October 24, 2007. No requests for this 
submittal or adverse comments on the submittal were received during the 
adequacy comment period. In a letter dated November 6, 2007, EPA 
informed WDNR that we had found the 2012 and 2018 MVEBs to be adequate 
for use in transportation conformity analyses.
    EPA, through this rulemaking, is proposing to approve the MVEBs for 
use to determine transportation conformity in the Kewaunee County area 
because EPA has determined that the area can maintain attainment of the 
8-hour ozone NAAQS for the relevant maintenance period with mobile 
source emissions at the levels of the MVEBs. WDNR has determined the 
2012 MVEBs for the Kewaunee County area to be 0.43 tpd for VOC and 0.80 
tpd for NOX. WDNR has determined the 2018 MVEBs for the area 
to be 0.32 tpd for VOC and 0.47 tpd for NOX. These MVEBs are 
consistent with the onroad mobile source VOC and NOX 
emissions projected by MDEQ for 2012 and 2018, as summarized in Table 6 
above (``onroad'' source sector). Wisconsin has demonstrated that the 
Kewaunee County area can maintain the 8-hour ozone NAAQS with mobile 
source emissions of 0.43 tpd and 0.32 tpd of VOC and 0.80 tpd and 0.47 
tpd of NOX in 2012 and 2018, respectively, since emissions 
will remain under attainment year emission levels.

VIII. What Action Is EPA Taking?

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

IX. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act

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

Executive Order 13132: Federalism

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

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the federal government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

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

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

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

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

National Technology Transfer Advancement Act

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

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

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

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

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

BILLING CODE 6560-50-P
