[Federal Register Volume 63, Number 22 (Tuesday, February 3, 1998)]
[Rules and Regulations]
[Pages 5460-5464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2616]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI75-01-7304; FRL-5958-7]
Approval and Promulgation of Implementation Plan; Wisconsin
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (USEPA)
proposed to approve Wisconsin's request to grant an exemption for the
Milwaukee severe and Manitowoc County moderate ozone nonattainment
areas from the applicable Oxides of Nitrogen (NOx) transportation
conformity requirements on June 12, 1997. The proposal was based on
information the Wisconsin Department of Natural Resource (WDNR)
submitted to the EPA as a State Implementation Plan (SIP) revision
request for an exemption under section 182(b)(1) of the Clean Air Act
(Act). The request was based on the urban airshed modeling (UAM)
conducted for the attainment demonstration for the Lake Michigan Ozone
Study (LMOS) modeling domain. The EPA is temporarily granting this
exemption until a control strategy SIP is approved.
DATES: This rule will be effective April 6, 1998.
ADDRESSES: Copies of the SIP revision, public comments and EPA's
responses are available for inspection at the following address:
Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), USEPA,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.
A copy of this SIP revision is available for inspection at the
following location:
Office of Air and Radiation (OAR) Docket and Information Center
(Air Docket 6102), room M1500, United States Environmental Protection
Agency, 401 M Street SW., Washington, DC 20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
353-6680.
SUPPLEMENTARY INFORMATION:
I. Background
Clean Air Act section 176(c)(3)(A)(iii) requires, in order to
demonstrate conformity with the applicable SIP, that transportation
plans and Transportation Improvement Programs (TIPs) contribute to
emissions reductions in ozone and carbon monoxide nonattainment areas
during the period before control strategy SIPs are approved by USEPA.
This requirement is implemented in 40 CFR 51.436 through 51.440 (and
Sec. Sec. 93.122 through 93.124), which establishes the so-called
``build/no-build test.'' This test requires a demonstration that the
``Action'' scenario (representing the implementation of the proposed
transportation plan/TIP) will result in lower motor vehicle emissions
than the ``Baseline'' scenario (representing the implementation of the
current transportation plan/TIP). In addition, the ``Action'' scenario
must result in emissions lower than 1990 levels.
The November 24, 1993, final transportation conformity rule
1 does not require the build/no-build test and less-
[[Page 5461]]
than-1990 test for NOx as an ozone precursor in ozone nonattainment
areas, where the Administrator determines that additional reductions of
NOx would not contribute to attainment of the National Ambient Air
Quality Standard (NAAQS) for ozone. Clean Air Act section
176(c)(3)(A)(iii), which is the conformity provision requiring
contributions to emission reductions before SIPs with emissions budgets
can be approved, specifically references Clean Air Act section
182(b)(1). That section requires submission of State plans that, among
other things, provide for specific annual reductions of volatile
organic compounds (VOCs) and NOx emissions ``as necessary'' to attain
the ozone standard by the applicable attainment date. Section 182(b)(1)
further states that its requirements do not apply in the case of NOx
for those ozone nonattainment areas for which USEPA determines that
additional reductions of NOx would not contribute to ozone attainment.
---------------------------------------------------------------------------
\1\ ``Criteria and Procedures for Determining Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Funded or Approved under Title 23 U.S.C. of
the Federal Transit Act'' November 24, 1993 (58 FR 62188).
---------------------------------------------------------------------------
For ozone nonattainment areas, the process for submitting waiver
requests and the criteria used to evaluate them are explained in the
December 1993 USEPA document ``Guidelines for Determining the
Applicability of Nitrogen Oxides Requirements Under Section 182(f),''
and the May 27, 1994, and February 8, 1995, memoranda from John S.
Seitz, Director of the Office of Air Quality Planning and Standards, to
Regional Air Division Directors, titled ``Section 182(f) NOx
Exemptions--Revised Process and Criteria.''
On July 13, 1994, the States of Illinois, Indiana, Michigan, and
Wisconsin (the States) submitted to the USEPA a petition for an
exemption from the requirements of section 182(f) of the Clean Air Act
(Act). The States, acting through the Lake Michigan Air Directors
Consortium (LADCo), petitioned for an exemption from the Reasonably
Available Control Technology (RACT) and New Source Review (NSR)
requirements for major stationary sources of NOx. The petition also
asked for an exemption from the transportation and general conformity
requirements for NOx in all ozone nonattainment areas in the Region.
On March 6, 1995, the USEPA published a rulemaking proposing
approval of the NOx exemption petition for the RACT, NSR and
transportation and general conformity requirements. A number of
comments were received on the proposal. Several commenters argued that
NOx exemptions are provided for in two separate parts of the Act, in
sections 182(b)(1) and 182(f), but that the Act's transportation
conformity provisions in section 176(c)(3) explicitly reference section
182(b)(1). In April 1995, the USEPA entered into an agreement to change
the procedural mechanism through which a NOx exemption from
transportation conformity would be granted (EDF et al. v. USEPA, No.
94-1044, U.S. Court of Appeals, D.C. Circuit). Instead of a petition
under section 182(f), transportation conformity NOx exemptions for
ozone nonattainment areas that are subject to section 182(b)(1) now
need to be submitted as a SIP revision request. The Milwaukee and the
Manitowoc ozone nonattainment areas are classified as moderate or above
and, thus, are subject to section 182(b)(1).
The transportation conformity requirements are found at sections
176(c)(2), (3), and (4). The conformity requirements apply on an
areawide basis in all nonattainment and maintenance areas. The USEPA's
transportation conformity rule was amended on August 29, 1995 (60 FR
44762) to reference section 182(b)(1) rather than section 182(f) as the
means for exempting areas subject to section 182(b)(1) from the
transportation conformity NOx requirements.
The July 10, 1996, SIP revision request from Wisconsin was
submitted to meet the requirements in accordance with section
182(b)(1). Public hearings on this SIP revision request were held on
January 11 and 12, 1995.
In evaluating the section 182(b) SIP revision request, the USEPA
considered whether additional NOx reductions would contribute to
attainment of the standard in Milwaukee severe and Manitowoc County
moderate ozone nonattainment areas and also in the downwind areas of
the LMOS modeling domain.
As outlined in relevant USEPA guidance, the use of photochemical
grid modeling is the recommended approach for testing the contribution
of NOx emission reductions to attainment of the ozone standard. This
approach simulates conditions over the modeling domain that may be
expected at the attainment deadline for three emission reduction
scenarios: (1) Substantial VOC reductions; (2) substantial NOx
reductions; and (3) both VOC and NOx reductions. If the areawide
predicted maximum one-hour ozone concentration for each day modeled
under scenario (1) is less than or equal to those from scenarios (2)
and (3) for the corresponding days, the test is passed and the section
182(f) NOx emissions reduction requirements would not apply.
In making this determination under section 182(b)(1) that the NOx
requirements do not apply, or may be limited in the Lake Michigan area,
the USEPA has considered the National study of ozone precursors
completed pursuant to section 185B of the Act. The USEPA has based its
decision on the demonstration and the supporting information provided
in the SIP revision request.
II. Public Comments
On June 12, 1997, the EPA proposed approval of the Wisconsin
request to grant an exemption for the Milwaukee severe and Manitowoc
County moderate ozone nonattainment areas from the applicable Oxides of
Nitrogen (NOx) transportation conformity requirements. The EPA received
five sets of comments during the public comment period which ended on
July 14, 1997. Four of the comments where in favor of the EPA proposal,
and one set was critical of the proposal.
Comment: Wisconsin has failed to establish a NOx budget for these
ozone nonattainment areas. Wisconsin has yet to develop and submit such
budgets as required by November 1994. Until these attainment
demonstrations, encompassing verifiable and allocated (biogenic, point,
mobile, and area) NOx emission budgets, are submitted and complete, any
determination that required control strategies are not necessary is
premature and unfounded.
Response: The EPA acknowledges that the State has not submitted the
attainment demonstration as required, but EPA can process this SIP
revision without an attainment demonstration. As described in the
proposal, EPA is issuing this waiver on a temporary basis while more
detail modeling information is being developed and submitted.
Comment: The Wisconsin submittal failed to demonstrate that low-
level NOx reductions in the Milwaukee and Manitowoc nonattainment areas
would not improve air quality. While the submittal did analyze domain-
wide low level NOx reductions, no such analysis was performed for the
specific Wisconsin counties. The State of Wisconsin in coordination
with LADCo, has the capabilities to model NOx emissions from mobile
sources in these counties. The EPA should require such a demonstration
before taking final action on this rulemaking.
Response: The LADCo analysis demonstrated that across the board
reductions in NOx from point, area, and mobile sources would not
improve air quality in the modeling domain. Further, LADCo performed an
analysis which focused on NOx reductions from point sources. This
analysis showed a small increase in ozone formation. From
[[Page 5462]]
this result LADCo concluded that low level NOx controls, i.e. mobile
and area sources, would be detrimental to air quality in the modeling
domain. The EPA accepts these conclusions.
Comment: The Wisconsin submittal failed to incorporate the LADCo
``Episode 4'' analysis. This episode represents meteorological
conditions with predominately east-to-west transport patterns. These
types of episodes will be important when assessing the revised NAAQS
eight hour exposure in Eastern Wisconsin. Areas such as Fox Valley and
Dane County, Wisconsin have already recorded eight hour average ozone
levels greater than 80 ppb.
Response: The EPA disagrees that Episode 4 was not incorporated
into Wisconsin's NOx waiver submittal. The August 22, 1994, EPA
technical review and the LADCo July 13, 1994, technical support
document for the NOx exemption modeling analysis clearly detail that
Episode 4 is included in the NOx waiver submittal. This episode
predicted that the highest domain-wide peak ozone concentrations occur
under the NOx-only reduction case. The modeling demonstration also
showed that NOx reductions are too limited to contribute to attainment
of the ozone standard.
Comment: Michigan Counties now in violation of the ozone NAAQS will
benefit from low-level NOx emissions reductions.
Response: Weather conditions which typically produce high levels of
ozone in the western Michigan area feature winds generally from the
south to southwest. NOx controls in Wisconsin have a minimal affect on
air quality in western Michigan during these high ozone episodes. The
LADCO modeling demonstrates that air quality benefits in western
Michigan occur primarily as a result of NOx controls in Illinois and
Indiana.
Comment: The EPA has failed to adequately consider the benefits of
NOx emissions reductions in the Milwaukee and Manitowoc nonattainment
areas.
Response: As stated above, the LADCo analysis demonstrated that
across-the-board reductions in NOx from point, area, and mobile sources
would not improve air quality in the modeling domain. Further, LADCo
performed an analysis which focused on NOx reductions from point
sources. This analysis showed a small increase in ozone formation. From
this result LADCo concluded that low level NOx controls, i.e. mobile
and area sources, would be detrimental to air quality in the modeling
domain. The EPA accepts these conclusions.
Comment: The EPA and Wisconsin failed to perform the appropriate
environmental justice analysis. The EPA has failed to consider the
spatial impact of where reductions could be anticipated and where
increases might occur with and without NOx conformity requirements in
Wisconsin.
Response: As discussed in the July 14, 1997, proposed approval, the
role that NOx emissions play in producing ozone at any given place and
time is complex. NOx primarily represents a sum of two oxides of
nitrogen, namely nitrogen oxide (NO) and nitrogen dioxide
(NO2). In the presence of sunlight, NO2 photo-
dissociates into NO and a single oxygen atom. The oxygen atom reacts
with molecular oxygen (O2) to form ozone (O3).
NO, on the other hand, near its source area readily reacts with ozone
to form O2 and NO2. The generated NO2
is then free to photo-dissociate and lead to ozone formation further
downwind. The reaction of NO with ozone, which locally reduces ozone
concentrations, is referred to as ozone scavenging and is one of the
primary local sinks for ozone in the lower atmosphere in and near NO
source areas. Since emissions of NOx from fuel combustion sources,
whether internal combustion engines or stationary combustion sources,
such as industrial boilers, contain significant amounts of NO, it is
expected that ozone concentrations immediately downwind of such NOx
sources will be reduced through ozone scavenging. Therefore, reducing
NOx emissions can lead to increased ozone concentrations in the
vicinity of the controlled NOx emission sources, whereas reducing NOx
emissions may lead to reduction in ozone concentrations further
downwind. Reducing NOx emissions in VOC-limited areas (areas with low
VOC emissions relative to NOx emissions) may produce minimal ozone
reductions or even ozone increases. This pattern of NOx scavenging is
demonstrated in the LADCo modeling. Therefore, controlling low level
NOx in Milwaukee area could in fact increase ozone concentrations in
local areas.
Comment: The Wisconsin request utilizes the BEIS-I inventory for
biogenics emissions. The Ozone Transport Assessment Group (OTAG)
concluded that the BEIS-II inventory is the preferred inventory for UAM
analyses.
Response: The BEIS-I was the approved and most appropriate biogenic
emissions inventory available to LADCo when the NOx model analysis was
performed. Any subsequent modeling performed by LADCo will utilize the
BEIS-II biogenic emissions inventory.
Comment: OTAG concluded, with Wisconsin's concurrence, that both
elevated and low level NOx reductions are effective in reducing ozone
levels. These conclusions were based extensively on OTAG modeling, and
are significant and relevant to EPA's action on this rule. The modeling
clearly demonstrated the efficacy of reducing low-level (mobile source)
NOx in controlling ozone. The conclusions of the policy group were that
such reductions were cost effective, and beneficial to reduce transport
to downwind areas.
Response: While EPA agrees in a general sense that OTAG recommended
NOx reductions from all source categories will reduce the transport of
ozone, it should be noted that OTAG concluded that States must have the
opportunity to conduct additional local and subregional modeling to
assess appropriateness, type, and timing of controls. OTAG further
concludes that States can work together, in coordination with EPA,
toward completing local SIPs including an evaluation of possible local
NOx disbenefits. The EPA believes that the specific modeling done by
LADCo should override OTAG's general findings as it pertains to NOx
disbenefits.
Comment: The OTAG concluded that ``disbenefit'' analyses found
ozone increases to be less frequent and severe than EPA concluded based
on the July 13, 1994, LADCo section 182(f) NOx waiver submittal, on
which the Wisconsin transportation conformity waiver is based.
Response: The OTAG-fine grid analysis utilized a 12 km grid as
compared to the LADCo fine grid of 4 km. This disparity in fine-grid
size de-emphasizes the NOx disbenefit at the local urbanized area. OTAG
concluded that some areas will experience local NOx disbenefits at more
frequent pronounced levels. The EPA believes that the LADCO fine-grid
analysis is more relevant than the waiver determination.
Comment: In previous rulemakings on similar NOx waiver requests,
EPA committed to incorporate the OTAG findings in ``future'' EPA
rulemakings. The OTAG has completed its analyses, and the EPA proposed
approval of Wisconsin's section 182(b) waiver is in direct conflict
with the OTAG's findings and EPA's commitment to utilize those
findings.
Response: The summary of the OTAG finding states that NOx
reductions decrease and increase ozone; decreases occur domain wide,
increases are confined to a few days in a few urban
[[Page 5463]]
areas. These local increases are due mostly to low level urban NOx
reductions. These findings are consistent with the LADCo analysis for
this waiver.
The EPA's recently signed proposed regional NOx rulemaking uses the
OTAG findings to identify States which contribute significantly to
ozone problem areas in other States. In addition, the proposed
rulemaking establishes State-wide NOx budgets for the year 2007.
A section of the rulemaking also solicits comments on approaches
that can be used to address the disbenefit issue in areas such as Lake
Michigan. Subsequent modeling by the LADCo States will need to address
the disbenefit issue as it pertains to the NOx budget, ozone transport,
and attainment.
III. EPA Action
In this final action, EPA is approving the transportation
conformity NOx waiver SIP revision for the State of Wisconsin. In light
of the modeling completed thus far and considering the importance of
the Ozone Transport Assessment Group (OTAG) process and attainment plan
modeling efforts, EPA notes that it may reexamine the impact of this
NOx waiver. In the near future, EPA intends to require appropriate
States to submit SIP measures to achieve emissions reductions of ozone
precursors needed to prevent significant transport of ozone. The EPA
will evaluate Wisconsin's submitted SIP measures and available refined
modeling to determine whether the NOx waiver should remain in place, or
whether EPA will require a new plan revision.
The EPA also reserves the right to require NOx emission controls
for transportation sources under section 110(a)(2)(D) of the Act if
future ozone modeling demonstrates that such controls are needed to
achieve the ozone standard in downwind areas.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. Executive Order (E.O.) 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements but simply approve requirements that
the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the Administrator
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Act, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. EPA, 427 U.S. 246, 255-66 (1976); 42
U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs of $100 million or more to State, local, or tribal governments in
the aggregate; or to the private sector, of $100 million or more. Under
section 205, the EPA must select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements. Section 203 requires the EPA to
establish a plan for informing and advising any small governments that
may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
preexisting requirements under state or local law, and imposes no new
requirements. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this action.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
General Accounting Office prior to publication of this rule in the
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2)
F. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 6, 1998. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Ozone, Oxides of Nitrogen, Transportation
conformity, Transportation-air quality planning, Volatile organic
compounds.
Dated: January 22, 1998.
David A. Ullrich,
Acting Regional Administrator, Region V.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C 7401 et seq.
Subpart YY--Wisconsin
2. Section 52.2585 is amended by adding paragraph (m) to read as
follows:
Sec. 52.2585 Control strategy: Ozone.
* * * * *
[[Page 5464]]
(m) Approval--On July 10, 1996, the Wisconsin Department of Natural
Resources submitted a revision to the ozone State Implementation Plan.
The submittal pertained to a request to waive the Oxide of Nitrogen
requirements for transportation conformity in the Milwaukee and
Manitowoc ozone nonattainment areas.
[FR Doc. 98-2616 Filed 2-2-98; 8:45 am]
BILLING CODE 6560-50-F
