Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Proposed Rules 22047 

Issued in Fort Worth, TX on April 19, 

2010. 

Anthony D. Roetzel, 

Manager, Operations Support Group, ATO 

Central Service Center. 

[FR Doc. 2010–9749 Filed 4–26–10; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 922 

Intent To Initiate Consultation and 

Coordinate the National Oceanic and 

Atmospheric Administration’s 

Responsibilities Under Section 106 of 

the National Historic Preservation Act 

(NHPA) With the Ongoing National 

Environmental Policy Act (NEPA) 

Process Supporting the Review of the 

Olympic Coast National Marine 

Sanctuary Management Plan 

AGENCY: Office of National Marine 

Sanctuaries (ONMS), National Ocean 

Service (NOS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce (DOC). 

ACTION: Consultation under Section 106 

of the NHPA in conjunction with 

Review of Management Plan/ 

Regulations and associated NEPA public 

process. 

SUMMARY: In accordance with section 

304(e) of the National Marine 

Sanctuaries Act, as amended, (NMSA) 

(16 U.S.C. 1431 et seq.), the Office of 

National Marine Sanctuaries (ONMS) of 

the National Oceanic and Atmospheric 

Administration (NOAA) has initiated a 

review of the Olympic Coast National 

Marine Sanctuary (OCNMS or 

sanctuary) management plan, to 

evaluate substantive progress toward 

implementing the goals for the 

Sanctuary, and to make revisions to the 

plan and regulations as necessary to 

fulfill the purposes and policies of the 

NMSA (73 FR 53161). The management 

plan review process occurs concurrently 

with a public process under the 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.). This 

notice confirms that NOAA will 

coordinate its responsibilities under 

NEPA with those under section 106 of 

the National Historic Preservation Act 

(NHPA, 16 U.S.C. 470). 

DATES: Comments may be submitted at 

any time. 

ADDRESSES: Written comments may be 

sent to the Olympic Coast National 

Marine Sanctuary (Management Plan 

Review), 115 Railroad Ave. East, Suite 

301, Port Angeles, WA 98362, or faxed 

to (360) 457–8496. Electronic comments 

may be sent to 

ocnmsmanagementplan@noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

George Galasso, 360.457.6622 Ext. 12, 

ocnmsmanagementplan@noaa.gov. 

SUPPLEMENTARY INFORMATION: OCNMS 

was designated in May 1994. It spans 

3,310 square miles of marine waters off 

the rugged Olympic Peninsula coast, 

covering much of the continental shelf 

and the heads of several major 

submarine canyons. The present 

management plan was written as part of 

the sanctuary designation process and 

published in the Final Environmental 

Impact Statement in 1993. 

In September 2008, NOAA published 

a Notice of Intent to prepare an 

Environmental Impact Statement under 

the authority of NEPA (73 FR 53161). 

The management plan review process is 

composed of four major stages: (1) 

Information collection and 

characterization; (2) preparation and 

release of a draft management plan/ 

environmental impact analysis 

document; (3) public review and 

comment; (4) preparation and release of 

a final management plan/environmental 

impact analysis document, and any final 

amendments to the regulations. NOAA 

anticipates completion of the revised 

management plan and concomitant 

documents will require approximately 

thirty-six months from the date of 

publication of the original notice of 

intent (37 FR 53161; September 15, 

2008). The proposed revised 

management plan will likely involve 

changes to existing policies of the 

Sanctuary in order to address 

contemporary issues and challenges, 

and to better protect and manage the 

Sanctuary’s natural resources and 

qualities and historic properties. 

This notice confirms that NOAA will 

coordinate its responsibilities under 

section 106 of the National Historic 

Preservation Act (NHPA, 16 U.S.C. 470) 

with its ongoing NEPA process, 

pursuant to 36 CFR 800.8(a)— 

coordination with NEPA—including the 

use of NEPA documents and public and 

stakeholder meetings to also meet the 

section 106 requirements. The NHPA 

specifically applies to any agency 

undertaking that has an adverse effect 

on historic properties. Pursuant to 36 

CFR 800.16(1)(1), historic properties 

includes: ‘‘any prehistoric or historic 

district, site, building, structure or 

object included in, or eligible for 

inclusion in, the National Register of 

Historic Places maintained by the 

Secretary of the Interior. The term 

includes artifacts, records, and remains 

that are related to and located within 

such properties. The term includes 

properties of traditional religious and 

cultural importance to an Indian tribe 

* * * and that meet the National 

Register criteria.’’ 

In coordinating its responsibilities 

under the NHPA and NEPA, NOAA 

intends to identify consulting parties; 

identify historic properties and assess 

the effects of the undertaking on such 

properties; initiate formal consultation 

with the Washington State Historic 

Preservation Officer, appropriate Tribal 

Historic Preservation Officers, the 

Advisory Council of Historic 

Preservation, and other consulting 

parties; involve the public in 

accordance with NOAA’s NEPA 

procedures, and develop in consultation 

with identified consulting parties 

alternatives and proposed measures that 

might avoid, minimize or mitigate any 

adverse effects on historic properties 

and describe them in any 

Environmental Assessment or Draft 

Environmental Impact Statement. 

Authority: 16 U.S.C. 1431 et seq.; 16 

U.S.C. 470. 

(Federal Domestic Assistance Catalog 

Number 11.429 Marine Sanctuary Program) 

Dated: April 15, 2010. 

Daniel J. Basta, 

Director for the Office of National Marine 

Sanctuaries. 

[FR Doc. 2010–9203 Filed 4–26–10; 8:45 am] 

BILLING CODE 3510–NK–M 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR PARTS 52 AND 81 

[EPA–R05–OAR–2009–0730; FRL–9142–2] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Wisconsin; Redesignation 

of the Manitowoc County and Door 

County Areas to Attainment for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

Wisconsin’s requests to redesignate the 

Manitowoc County and Door County, 

Wisconsin nonattainment areas, to 

attainment for the 1997 8-hour ozone 

standard, because the requests meet the 

statutory requirements for redesignation 

under the Clean Air Act (CAA). The 

Wisconsin Department of Natural 

Resources (WDNR) submitted these 

requests on September 11, 2009. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

22048 Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Proposed Rules 

These proposed approvals involve 

several related actions. EPA is 

proposing to determine that the 

Manitowoc County and Door County 

areas have attained the 8-hour ozone 

National Ambient Air Quality Standard 

(NAAQS). These determinations are 

based on three years of complete, 

quality-assured and certified ambient air 

quality monitoring data for the 2006– 

2008 ozone seasons that demonstrate 

that the 8-hour ozone NAAQS has been 

attained in the areas. Complete, qualityassured air quality data for the 2009 

ozone season have been recorded in the 

EPA’s Air Quality System (AQS) and 

show that the areas continue to attain 

the 8-hour ozone standard. EPA is also 

proposing to approve, as revisions to the 

Wisconsin State Implementation Plan 

(SIP), the State’s plans for maintaining 

the 8-hour ozone NAAQS through 2020 

in the areas. 

EPA is proposing to approve the 2005 

base year emissions inventories for the 

Manitowoc County and Door County 

areas as meeting the base year emissions 

inventory requirement of the CAA. 

WDNR submitted these base year 

emissions inventories on June 12, 2007. 

Finally, EPA finds adequate and is 

proposing to approve the State’s 2012 

and 2020 Motor Vehicle Emission 

Budgets (MVEBs) for the Manitowoc 

County and Door County areas. 

DATES: Comments must be received on 

or before May 27, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2009–0730, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: bortzer.jay@epa.gov. 

3. Fax: (312) 692–2054. 

4. Mail: Jay Bortzer, Chief, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. 

5. Hand delivery: Jay Bortzer, Chief, 

Air Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

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–2009– 

0730. 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 

this document, ‘‘What Should I Consider 

as I Prepare My Comments for EPA?’’ 

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 Federal 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), U.S. 

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 actions is EPA proposing to take? 

III. What is the background for these actions? 

A. What is the general background 

information? 

B. What are the impacts of the December 

22, 2006, and June 8, 2007, United States 

Court of Appeals decisions regarding 

EPA’s Phase 1 implementation rule? 

IV. What are the criteria for redesignation? 

V. What is the effect of these actions? 

VI. What is EPA’s analysis of the requests? 

A. Attainment Determinations and 

Redesignations 

B. Adequacy of Wisconsin’s MVEBs 

C. 2005 Base Year Emissions Inventories 

VII. What actions is EPA taking? 

VIII. 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—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 actions is EPA proposing to 

take? 

EPA is proposing to take several 

related actions. EPA is proposing to 

determine that the Manitowoc County 

and Door County nonattainment areas 

have attained the 1997 8-hour ozone 

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Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Proposed Rules 22049 

standard and that the areas have met the 

requirements for redesignation under 

section 107(d)(3)(E) of the CAA. EPA is 

thus proposing to approve the requests 

from WDNR to change the legal 

designation of the Manitowoc County 

and Door County areas from 

nonattainment to attainment for the 8- 

hour ozone NAAQS. EPA is also 

proposing to approve, as revisions to the 

Wisconsin SIP, the State’s maintenance 

plans (such approval being one of the 

CAA criteria for redesignation to 

attainment status). The maintenance 

plans are designed to keep the 

Manitowoc County and Door County 

areas in attainment of the ozone NAAQS 

through 2020. EPA is proposing to 

approve the 2005 base year emissions 

inventories for the Manitowoc County 

and Door County areas as meeting the 

requirements of section 172(c)(3) of the 

CAA. If EPA’s determination of 

attainment is finalized, under the 

provisions of 40 CFR 51.918, the 

requirement to submit certain planning 

SIPs related to attainment (the 

Reasonably Available Control Measure 

(RACM) requirement of section 172(c)(1) 

of the CAA, the Reasonable Further 

Progress (RFP) and attainment 

demonstration requirements of sections 

172(c)(2) and (6) of the CAA, and the 

requirement for contingency measures 

of section 172(c)(9) of the CAA) are not 

applicable to the area as long as it 

continues to attain the NAAQS and 

would cease to be applicable upon 

redesignation. In addition, as set forth in 

more detail below, in the context of 

redesignations, EPA has interpreted 

requirements related to attainment as 

not applicable for purposes of 

redesignation. Finally, EPA finds 

adequate and is proposing to approve 

the newly-established 2012 and 2020 

MVEBs for the Manitowoc County and 

Door County areas. The adequacy 

comment period for the MVEBs began 

on February 24, 2010, 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 March 

26, 2010. EPA did not receive any 

requests for this submittal, or adverse 

comments on this submittal during the 

adequacy comment period. In a letter 

dated April 7, 2010, EPA informed 

WDNR that we had found the 2012 and 

2020 MVEBs to be adequate for use in 

transportation conformity analyses. 

Please see section VI.B. of this 

rulemaking, ‘‘Adequacy of Wisconsin’s 

MVEBs,’’ for further explanation of this 

process. Therefore, we find adequate, 

and are proposing to approve, the 

State’s 2012 and 2020 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 groundlevel ozone. NOX and VOCs are referred 

to as precursors of ozone. 

The CAA establishes a process for air 

quality management through the 

NAAQS. Before promulgation of the 8- 

hour standard, the ozone NAAQS was 

based on a 1-hour standard. On 

November 6, 1991 (56 FR 56693 and 

56852), the Manitowoc County and Door 

County areas were designated as 

moderate and rural transport 

nonattainment areas, respectively, 

under the 1-hour ozone NAAQS. The 

Manitowoc County and Door County 

areas were subsequently redesignated to 

attainment of the 1-hour standard on 

April 17, 2003 (68 FR 18883). At the 

time EPA revoked the 1-hour ozone 

NAAQS, on June 15, 2005, the 

Manitowoc County and Door County 

areas were designated as attainment 

under the 1-hour ozone NAAQS. 

On July 18, 1997 (62 FR 38856), EPA 

promulgated an 8-hour ozone standard 

of 0.08 parts per million parts (ppm). 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. EPA designated 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, of the 

CAA; 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 additional and more specific 

requirements for ozone nonattainment 

areas. 

Under EPA’s implementation rule for 

the 1997 8-hour ozone standard, (69 FR 

23951 (April 30, 2004)), an area was 

classified under subpart 2 based on its 

8-hour ozone design value (i.e. the 

three-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 

Manitowoc County and Door County 

areas were 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 

three-year average of the annual fourthhighest 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). 

The WDNR submitted requests to 

redesignate the Manitowoc County and 

Door County areas to attainment for the 

8-hour ozone standard on September 11, 

2009. The redesignation requests 

included three years of complete, 

quality-assured data for the period of 

2006 through 2008, indicating the 8- 

hour NAAQS for ozone, as promulgated 

in 1997, had been attained for the 

Manitowoc County and Door County 

areas. Complete, quality-assured 

monitoring data in AQS but not yet 

certified for the 2009 ozone season show 

that the areas continue to attain the 8- 

hour ozone standard. 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). 

On March 27, 2008 (73 FR 16436), 

EPA promulgated a revised 8-hour 

ozone standard of 0.075 ppm. In May 

2008, States, environmental groups and 

industry groups filed petitions with the 

DC Circuit Court of Appeals for review 

of the 2008 ozone standards. In March 

2009, the court granted EPA’s request to 

stay the litigation so EPA could review 

the standards and determine whether 

they should be reconsidered. On 

September 16, 2009, we announced that 

we are reconsidering our 2008 decision 

setting national standards for groundlevel ozone. The designation process for 

that standard has been stayed. On 

January 19, 2010, EPA proposed to set 

the level of the primary 8-hour ozone 

standard within the range of 0.060 to 

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22050 Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Proposed Rules 

0.070 ppm, rather than at 0.075 ppm (75 

FR 2938). We expect by August 2010 to 

have completed our reconsideration of 

the standard and also expect that 

thereafter we will proceed with 

designations. The actions addressed in 

today’s proposed rulemaking relate only 

to the 1997 8-hour ozone standard. 

B. What are the impacts of the 

December 22, 2006, and June 8, 2007, 

United States Court of Appeals 

decisions regarding EPA’s Phase 1 

implementation rule? 

1. Summary of Court Decision 

On December 22, 2006, in South 

Coast Air Quality Management Dist. v. 

EPA (South Coast), 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). 472 F.3d 882 (DC Cir. 2006). On 

June 8, 2007, in response to several 

petitions for rehearing, the DC Circuit 

Court clarified that the Phase 1 Rule was 

vacated only with regard to those parts 

of the rule that had been successfully 

challenged. Id., Docket No. 04 1201. 

Therefore, several provisions of the 

Phase 1 Rule remain effective: 

provisions related to classifications for 

areas currently classified under subpart 

2 of Title I, part D, of the CAA 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. 

The June 8, 2007, decision also 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, 

2007, decision reaffirmed the December 

22, 2006, decision that EPA had 

improperly failed to retain four 

measures required for 1-hour 

nonattainment areas under the antibacksliding 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 CAA, 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, 2007, 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 these proposed redesignation 

actions. For the reasons set forth below, 

EPA does not believe that the court’s 

rulings alter any requirements relevant 

to these redesignation actions so as to 

preclude redesignation or prevent EPA 

from proposing or ultimately finalizing 

these redesignations. EPA believes that 

the court’s December 22, 2006, and June 

8, 2007, decisions impose no 

impediment to moving forward with 

redesignation of these areas 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. In its January 16, 

2009, proposed rulemaking in response 

to the South Coast decision, EPA has 

proposed to classify Door County and 

Manitowoc County under subpart 2 as 

moderate and marginal areas, 

respectively (74 FR 2936, 2944). If EPA 

finalizes this rulemaking, the 

requirements under subpart 2 will 

become applicable when they are due, 

a deadline that EPA has proposed to be 

one year after the effective date of a final 

rulemaking classifying areas as 

moderate or marginal (74 FR 2940– 

2941). Although a future final decision 

by EPA to classify these areas under 

subpart 2 would trigger additional 

future requirements for the areas, EPA 

believes that this does not mean that 

redesignations 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 be applied 

in the future. 

First, at the time the redesignation 

requests were submitted, the Manitowoc 

County and Door County areas were not 

classified under subpart 2, nor were 

there any subpart 2 requirements yet 

due for these areas. 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. See 

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, 

12465–12466 (March 7, 1995) 

(Redesignation of Detroit-Ann Arbor). 

See Sierra Club v. EPA, 375 F.3d 537 

(7th Cir. 2004), which upheld EPA’s 

redesignation rulemaking applying 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 areas by applying to them, 

for purposes of redesignation, additional 

SIP requirements under subpart 2 that 

were not in effect or yet due at the time 

WDNR submitted its redesignation 

requests. 

3. Requirements Under the 1-Hour 

Standard 

With respect to the 1-hour standard 

requirements, the Manitowoc County 

and Door County areas were attainment 

areas subject to CAA section 175A 

maintenance plans under the 1-hour 

standard at the time that the 1-hour 

standard was revoked. Therefore, the DC 

Circuit’s decisions with respect to 1- 

hour nonattainment anti-backsliding 

requirements do not impact 

redesignation requests for these types of 

areas, except to the extent that the court 

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in its June 8, 2007, 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 

requirements of EPA’s conformity 

regulations at 40 CFR part 93. 

With respect to the three other antibacksliding provisions for the 1-hour 

standard that the court found were not 

properly retained, the Manitowoc 

County and Door County areas are 

attainment areas subject to maintenance 

plans for the 1-hour standard, and the 

NSR, contingency measures (pursuant to 

section 172(c)(9) or 182(c)(9)), and fee 

provision requirements no longer apply 

to areas that have been redesignated to 

attainment of the 1-hour standard. 

Thus, the South Coast decision in 

South Coast Air Quality Management 

Dist. does not preclude EPA from 

finalizing the redesignation of these 

areas. 

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 

(TSDs) 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, 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. 

V. What is the effect of these actions? 

Approval of the redesignation 

requests would change the official 

designations of the Manitowoc County 

and Door County areas for the 1997 8- 

hour ozone NAAQS found at 40 CFR 

part 81. It would also incorporate into 

the Wisconsin SIP plans for maintaining 

the 8-hour ozone NAAQS through 2020. 

The maintenance plans include 

contingency measures as required under 

CAA section 175A to remedy future 

violations of the 8-hour NAAQS. They 

also establish MVEBs for the Manitowoc 

County area of 1.76 and 1.25 tons per 

day (tpd) for VOC and 3.76 and 1.86 tpd 

for NOX for the years 2012 and 2020, 

respectively, and MVEBs for the Door 

County area of 0.78 and 0.53 tpd for 

VOC and 1.55 and 0.74 tpd for NOX for 

the years 2012 and 2020, respectively. 

VI. What is EPA’s analysis of the 

request? 

A. Attainment Determinations and 

Redesignations 

EPA is proposing to determine that 

the Manitowoc County and Door County 

areas have attained the 1997 8-hour 

ozone standard and that the areas have 

met all other applicable redesignation 

criteria under CAA section 107(d)(3)(E). 

The basis for EPA’s proposed approvals 

of the redesignation requests is as 

follows: 

1. The Areas Have Attained the 8-Hour 

Ozone NAAQS (Section 107(d)(3)(E)(i)) 

EPA is proposing to make 

determinations that the Manitowoc 

County and Door County areas have 

attained the 1997 8-hour ozone NAAQS. 

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 threeyear 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 AQS. The monitors 

generally should have remained at the 

same location for the duration of the 

monitoring period required for 

demonstrating attainment. 

Wisconsin included in its 

redesignation requests ozone monitoring 

data for the 2006 to 2008 ozone seasons 

and has subsequently provided 

monitoring data for 2009. Monitoring 

data for 2006 through 2008 have been 

certified by the State; 2009 data have 

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not yet been certified. However, 

Wisconsin has quality-assured all of the 

ambient monitoring data in accordance 

with 40 CFR 58.10, and has recorded it 

in the AQS database. The data meet the 

completeness criteria in 40 CFR 50, 

Appendix I, which require a minimum 

completeness of 75 percent annually 

and 90 percent over each three-year 

period. Monitoring data are presented in 

Table 1 below. 

TABLE 1—ANNUAL 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATION AND THREE YEAR AVERAGES OF 4TH

HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS

Monitor 

2006 

4th high 

(ppm) 

2007 

4th high 

(ppm) 

2008 

4th high 

(ppm) 

2009 

4th high 

(ppm) 

2006–2008 

average 

(ppm) 

2007–2009 

average 

(ppm) 

Door 55–029–0004 .......................................................... 0.079 0.092 0.069 0.075 0.080 0.078 

Manitowoc 55–071–0007 ................................................. 0.078 0.085 0.064 0.078 0.075 0.075 

In addition, as discussed below with 

respect to the maintenance plans, 

WDNR has committed to continue to 

operate an EPA-approved monitoring 

network in the areas. WDNR will 

continue to quality assure monitoring 

data in accordance with 40 CFR part 58 

and enter all data into AQS in 

accordance with Federal guidelines. In 

summary, EPA believes that the data 

show that the Manitowoc County and 

Door County areas have attained the 8- 

hour ozone NAAQS. 

2. The Areas Have Met All Applicable 

Requirements Under Section 110 and 

Part D; and the Areas Have Fully 

Approved SIPs 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 Manitowoc County 

and Door County areas under section 

110 of the CAA (general SIP 

requirements). We are also proposing to 

determine that the Wisconsin SIP meets 

all SIP requirements for these areas 

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, with the exception of the 

base year emissions inventories, we 

have approved all applicable 

requirements of the Wisconsin SIP for 

purposes of redesignation, in 

accordance with section 107(d)(3)(E)(ii). 

As discussed below, in this action EPA 

is proposing to approve Wisconsin’s 

2005 base year emissions inventories as 

meeting the section 172(c)(3) emissions 

inventory requirement for the areas. 

In proposing these determinations, we 

have ascertained which SIP 

requirements are applicable to the areas 

for purposes of redesignation, and have 

determined that there are SIP measures 

meeting those requirements and that 

they are, or upon final approval of the 

emissions inventories, will be fully 

approved under section 110(k) of the 

CAA. As discussed more fully below, 

for purposes of evaluating a 

redesignation request, SIPs must be 

fully approved only with respect to 

requirements that became due prior to 

the submission of the redesignation 

request. 

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, 

12465–12466 (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 

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). 

Since EPA is proposing here to 

determine that the areas have attained 

the 1997 8-hour ozone standard, under 

40 CFR 51.918, if these determinations 

are finalized, the requirements to submit 

certain planning SIPs related to 

attainment, including attainment 

demonstration requirements (the RACM 

requirement of section 172(c)(1) of the 

CAA, the RFP and attainment 

demonstration requirements of sections 

172(c)(2) and (c)(6) of the CAA, and the 

requirement for contingency measures 

of section 172(c)(9) of the CAA), would 

not be applicable to the areas as long as 

they continue to attain the NAAQS and 

would cease to apply upon 

redesignation. In addition, in the 

context of redesignations, EPA has 

interpreted requirements related to 

attainment as not applicable for 

purposes of redesignation. For example, 

in the General Preamble EPA stated that: 

[t]he section 172(c)(9) requirements are 

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply when an area has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans * * * provides specific requirements 

for contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas. ‘‘General Preamble 

for the Interpretation of Title I of the Clean 

Air Act Amendments of 1990,’’ (General 

Preamble) 57 FR 13498, 13564 (April 16, 

1992). 

See also Calcagni memorandum at 6 

(‘‘The requirements for reasonable 

further progress and other measures 

needed for attainment will not apply for 

redesignations because they only have 

meaning for areas not attaining the 

standard.’’). 

a. The Manitowoc County and Door 

County Areas Have Met All Applicable 

Requirements for Purposes of 

Redesignation Under Section 110 and 

Part D of the CAA 

i. Section 110 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, among other things, must: 

Include enforceable emission 

limitations and other control measures, 

means or techniques necessary to meet 

the requirements of the CAA; provide 

for establishment and operation of 

appropriate devices, methods, systems 

and procedures necessary to monitor 

ambient air quality; provide for 

implementation of a source permit 

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1On 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. 

program to regulate the modification 

and construction of any stationary 

source within the areas covered by the 

plan; include provisions for the 

implementation of part C, Prevention of 

Significant Deterioration (PSD) and part 

D, NSR permit programs; include 

criteria for stationary source emission 

control measures, monitoring, and 

reporting; include provisions for air 

quality modeling; and provide 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 and Clean Air 

Interstate Rule (CAIR) (70 FR 25162, 

May 12, 2005)). 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. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a State regardless 

of the designation of any one particular 

area in the State. Thus, 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 that are linked with 

a particular area’s designation and 

classification are the relevant measures 

that 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 FR 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, Ohio 1-hour 

ozone redesignation (65 FR 37890, June 

19, 2000), and in the Pittsburgh, 

Pennsylvania 1-hour ozone 

redesignation (66 FR 50399, October 19, 

2001). 

We have reviewed Wisconsin’s SIP 

and have concluded that it meets the 

general SIP requirements under section 

110 of the CAA to the extent they are 

applicable for purposes of 

redesignation. EPA has previously 

approved provisions of the Wisconsin 

SIP addressing section 110 elements 

under the 1-hour ozone standard (40 

CFR 52.2570). Further, in a submittal 

dated December 12, 2007, Wisconsin 

confirmed that the State continues to 

meet the section 110 requirements for 

the 8-hour ozone standard. EPA has not 

yet taken rulemaking action on this 

submittal; however, such approval is 

not necessary for redesignation. 

ii. Part D Requirements 

EPA has determined that, if EPA 

finalizes the approval of the base year 

emissions inventories discussed in 

section VI.C. of this rulemaking, the 

Wisconsin SIP will meet the applicable 

SIP requirements for the Manitowoc 

County and Door County areas 

applicable for purposes of redesignation 

under part D of the CAA. Subpart 1 of 

part D, found in sections 172–176 of the 

CAA, sets forth the basic nonattainment 

requirements applicable to all 

nonattainment areas. Subpart 2 of part 

D, which includes section 182 of the 

CAA, establishes additional specific 

requirements depending on the area’s 

nonattainment classification. 

Since the Manitowoc County and 

Door County areas were not classified 

under subpart 2, of Part D at the time 

the redesignation requests were 

submitted, the subpart 2 requirements 

do not apply for purposes of evaluating 

the State’s redesignation requests. The 

applicable subpart 1 requirements are 

contained in sections 172(c)(1)–(9) and 

in section 176. 

Subpart 1 Section 172 Requirements 

For purposes of evaluating these 

redesignation requests, the applicable 

section 172 SIP requirements for the 

Manitowoc County and Door County 

areas 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). 

Section 172(c)(1) requires the plans 

for all nonattainment areas to provide 

for the implementation of all RACM as 

expeditiously as practicable and to 

provide for attainment of the primary 

NAAQS. EPA interprets this 

requirement to impose a duty on all 

nonattainment areas to consider all 

available control measures and to adopt 

and implement such measures as are 

reasonably available for implementation 

in each area as components of the area’s 

attainment demonstration. Because 

attainment has been reached, no 

additional measures are needed to 

provide for attainment, and section 

172(c)(1) requirements are no longer 

considered to be applicable as long as 

the area continues to attain the standard 

until redesignation. (40 CFR 51.918). 

The RFP requirement under section 

172(c)(2) is defined as progress that 

must be made toward attainment. This 

requirement is not relevant for purposes 

of redesignation because the Manitowoc 

County and Door County areas have 

monitored attainment of the ozone 

NAAQS. (General Preamble, 57 FR 

13564). See also 40 CFR 51.918. In 

addition, because the Manitowoc 

County and Door County areas have 

attained the ozone NAAQS and are no 

longer subject to an RFP requirement, 

the requirement to submit the section 

172(c)(9) contingency measures is not 

applicable for purposes of 

redesignation. Id. 

Section 172(c)(3) requires submission 

and approval of a comprehensive, 

accurate and current inventory of actual 

emissions. Wisconsin submitted 2005 

base year emissions inventories on June 

12, 2007. As discussed below in section 

VI.C., EPA is proposing to approve the 

2005 base year inventories as meeting 

the section 172(c)(3) emissions 

inventory requirement for the 

Manitowoc County and Door County 

areas. 

Section 172(c)(4) requires the 

identification and quantification of 

allowable emissions for major new and 

modified stationary sources in an area, 

and section 172(c)(5) requires source 

permits for the construction and 

operation of new and modified major 

stationary sources anywhere in the 

nonattainment area. EPA approved 

Wisconsin’s current NSR program on 

December 17, 2008 (73 FR 76558 and 

76560). Nonetheless, EPA has 

determined that, since PSD 

requirements will apply after 

redesignation, areas being redesignated 

need not comply with the requirement 

that a nonattainment NSR program be 

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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 

Manitowoc County and Door County 

areas will be able to maintain the 

standard without part D NSR in effect; 

therefore, 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 Manitowoc County and 

Door County areas upon redesignation 

to attainment. See rulemakings for 

Detroit, Michigan (60 FR 12467–12468, 

March 7, 1995); Cleveland-AkronLorain, 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 172(c)(6) requires the SIP to 

contain control measures necessary to 

provide for attainment of the standard. 

Because attainment has been reached, 

no additional measures are needed to 

provide for attainment. 

Section 172(c)(7) requires the SIP to 

meet the applicable provisions of 

section 110(a)(2). As noted above, we 

believe the Wisconsin SIP meets the 

requirements of section 110(a)(2) 

applicable for purposes of 

redesignation. 

Subpart 1 Section 176 Conformity 

Requirements 

Section 176(c) of the CAA requires 

States to establish criteria and 

procedures to ensure that Federallysupported 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. 

Section 176(c) of the CAA was amended 

by provisions contained in the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEALU), which was signed 

into law on August 10, 2005 (Pub. L. 

109–59). Among the changes Congress 

made to this section of the CAA were 

streamlined requirements for State 

conformity SIPs. Wisconsin is in the 

process of updating its transportation 

conformity SIP to meet these new 

requirements. Wisconsin has submitted 

onroad MVEBs for the Manitowoc 

County area of 1.76 and 1.25 tpd VOC 

and 3.76 and 1.86 tpd NOX for the years 

2012 and 2020, respectively and MVEBs 

for the Door County area of 0.78 and 

0.53 tpd VOC and 1.55 and 0.74 tpd 

NOX for the years 2012 and 2020, 

respectively. The areas must use the 

MVEBs from the maintenance plans in 

any conformity determination that is 

effective on or after the effective date of 

the adequacy finding and/or the 

maintenance plans’ approval. 

b. The Manitowoc County and Door 

County Areas Have Fully Approved 

Applicable SIPs under Section 110(k) of 

the CAA 

If EPA issues a final approval of the 

base year emissions inventories, EPA 

will have fully approved the Wisconsin 

SIP for the Manitowoc County and Door 

County areas 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 page 3 of the 

September 4, 1992, John Calcagni 

memorandum; 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 various required SIP 

elements under the 1-hour ozone 

standard. In this action, EPA is 

proposing to approve Wisconsin’s 2005 

base year emissions inventories for the 

Manitowoc County and Door County 

areas as meeting the requirement of 

section 172(c)(3) of the CAA. No 

Manitowoc County or Door 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 Manitowoc 

County and Door County areas is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIPs, Federal 

measures, and other State-adopted 

measures. 

In making this demonstration, WDNR 

has calculated the change in emissions 

between 2002 and 2007. Wisconsin 

developed an emissions inventory for 

2002, one of the years used to designate 

the areas as nonattainment. The State 

developed an attainment inventory for 

2007, one of the years the Manitowoc 

County and Door County areas 

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 Manitowoc and Door Counties and 

upwind areas have implemented in 

recent years. 

a. Permanent and Enforceable Controls 

Implemented 

The following is a discussion of 

permanent and enforceable measures 

that have been implemented in the 

areas: 

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i. 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 the following. 

Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards. 

These emission control requirements 

result in lower VOC and NOX emissions 

from new cars and light duty trucks, 

including sport utility vehicles. The 

Federal rules were phased in between 

2004 and 2009. The EPA has estimated 

that, by the end of the phase-in period, 

the following vehicle NOX emission 

reductions will occur nationwide: 

Passenger cars (light duty vehicles) (77 

percent); light duty trucks, minivans, 

and sports utility vehicles (86 percent); 

and, larger sports utility vehicles, vans, 

and heavier trucks (69 to 95 percent). 

VOC emission reductions are expected 

to range from 12 to 18 percent, 

depending on vehicle class, over the 

same period. Some of these emission 

reductions occurred by the 2007–2009 

period used to demonstrate attainment, 

and additional emission reductions will 

occur during the maintenance period. 

Heavy-Duty Diesel Engine Rule. EPA 

issued this rule in July 2000. This rule 

includes standards limiting the sulfur 

content of diesel fuel, which went into 

effect in 2004. A second phase took 

effect in 2007 which further reduced the 

highway diesel fuel sulfur content to 15 

ppm, leading to additional reductions in 

combustion NOX and VOC emissions. 

This rule is expected to achieve a 95 

percent reduction in NOX emissions 

from diesel trucks and busses. 

Non-Road Diesel Rule. EPA issued 

this rule in 2004. This rule applies to 

diesel engines used in industries, such 

as construction, agriculture, and mining. 

It is estimated that compliance with this 

rule will cut NOX emissions from nonroad diesel engines by up to 90 percent. 

This rule is currently achieving 

emission reductions, but will not be 

fully implemented until 2010. 

Maximum Achievable Control 

Technology (MACT) Rules. EPA has 

promulgated numerous MACT 

standards, many of which limit VOC 

emissions. Compliance began for many 

of the MACT rules from late 2005 

through 2007. 

ii. Control Measures in Upwind Areas 

NOX Reasonably Available Control 

Technology (RACT). Wisconsin adopted 

NOX RACT regulations for the upwind 

Milwaukee-Racine area. The emission 

requirements apply to stationary 

combustion units at major sources, with 

compliance required by May 1, 2009. 

The RACT rule is estimated to achieve 

reductions of over 29,000 tpy of NOX

emissions from 2002 levels. 

NOX SIP Call. 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. Affected States were required to 

comply with Phase I of the SIP Call 

beginning in 2004, and Phase II 

beginning in 2007. The reduction in 

NOX emissions has resulted in lower 

concentrations of transported ozone 

entering the Manitowoc County and 

Door County areas. Emission reductions 

resulting from regulations developed in 

response to the NOX SIP Call are 

permanent and enforceable. 

b. Emission Reductions 

States are required to develop 

periodic emissions inventories every 

three years. (40 CFR part 51, subpart A). 

Wisconsin is using the periodic 

emissions inventory from 2002 as the 

nonattainment inventory. Point source 

sector emissions inventories were 

developed using reported point source 

emissions, EPA’s Clean Air Markets 

database and approved EPA techniques 

for emissions calculations. Emissions 

were estimated by collecting processlevel information from each facility that 

qualifies for inclusion into WDNR’s 

point source database. Process, boiler, 

fugitive and tank emissions were 

typically calculated using throughput 

information multiplied by an emission 

factor for the process. Emission factor 

sources included mass balance, stack 

testing, continuous emissions monitors, 

engineering judgment and EPA’s Factor 

Information Retrieval database. 

Area source emissions were generated 

by backcasting from the 2005 periodic 

emissions inventory to minimize 

differences between the nonattainment 

and attainment inventories due to 

changes in methodology. The 

backcasting factors were based on 2002– 

2008 growth factors including the 

Census Bureau’s County Business 

Pattern employment data, growth factors 

developed for the Lake Michigan Air 

Directors Consortium (LADCO) by E.H. 

Pechan & Associates, Inc. (Pechan); and 

the Economic Growth Analysis System 

(EGAS6.0). Area source emissions 

estimates for the 2005 periodic 

inventory were calculated using 

population, gasoline consumption, 

employment, crop acreages, and other 

activity surrogates. The results of an 

EPA Solvent Mass Balance study were 

used to estimate emissions for some 

categories. Emission factors were 

derived from local data, local or 

national surveys and EPA guidance for 

the development of emissions 

inventories. Point source emissions 

were subtracted from total category 

specific area source emissions to 

prevent double counting. 

Nonroad mobile source emissions 

were calculated using EPA’s National 

Mobile Inventory Model (NMIM) and 

emissions estimates developed for 

commercial marine vessels, aircraft, and 

railroads (MAR), three nonroad 

categories not included in NMIM. 

Before NMIM was run, the following 

modifications and additions were made 

to the NMIM input data: (1) Revised 

activity data for construction equipment 

using updates provided by Pechan; (2) 

revised allocation data for recreational 

marine equipment using updates 

provided by ENVIRON International 

Corporation (ENVIRON); (3) added 

emission factors for diesel tampers/ 

rammers provided by Pechan; (4) 

revised population data for construction 

and recreational marine equipment 

using updates provided by Pechan and 

ENVIRON, respectively; (5) revised 

growth rates using updates provided by 

Pechan; and (6) revised gasoline 

parameters, including Reid Vapor 

Pressure, oxygenate content and sulfur 

content, using updates provided by the 

States and Pechan. Onroad mobile 

source emissions were calculated using 

the MOBILE6.2 emissions model. 

Wisconsin developed a 2007 

attainment year inventory using the 

methodologies described above to 

estimate point, nonroad mobile and 

onroad mobile sector emissions. Area 

source emissions were generated by 

applying growth factors and applicable 

emission controls to the 2005 area 

source sector inventory. Growth factors 

include the Census Bureau’s County 

Business Pattern employment data, 

growth factors developed for LADCO by 

Pechan; and EGAS6.0. 

Using the inventories described 

above, Wisconsin’s submittal 

documents changes in VOC and NOX

emissions from 2002 to 2007 for the 

Manitowoc County and Door County 

areas. Because Manitowoc and Door 

Counties are impacted by transport, 

WDNR also documented emissions 

reductions for the upwind Wisconsin 

areas of Sheboygan and MilwaukeeRacine. Emissions data are shown in 

Tables 2 through 6 below. 

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Table 4 shows that the Manitowoc 

County area reduced VOC emissions by 

1.85 tpd and NOX emissions by 2.32 tpd 

between 2002 and 2007. Table 5 shows 

that the Door County area reduced VOC 

emissions by 1.23 tpd and NOX

emissions by 2.17 tpd between 2002 and 

2007. In addition, as shown in Table 6, 

the upwind areas of Sheboygan and 

Milwaukee-Racine reduced VOC 

emissions by 39.90 tpd and NOX

emissions by 125.08 tpd between 2002 

and 2007. 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 requests to 

redesignate the Manitowoc County and 

Door County nonattainment areas to 

attainment status, Wisconsin submitted 

SIP revisions to provide for the 

maintenance of the 8-hour ozone 

NAAQS in the areas through 2020. 

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 

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 emissions 

inventories for 2007, one of the years 

used to demonstrate monitored 

attainment of the 8-hour NAAQS, as 

described above. The attainment level of 

emissions is summarized in Table 3, 

above. 

c. Demonstration of Maintenance 

Along with the redesignation 

requests, WDNR submitted revisions to 

the Wisconsin 8-hour ozone SIP to 

include maintenance plans for the 

Manitowoc County and Door County 

areas, as required by section 175A of the 

CAA. These demonstrations show 

maintenance of the 8-hour ozone 

standard through 2020 by showing that 

current and future emissions of VOC 

and NOX for the areas 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 emissions 

inventory projections for the years 2012 

and 2020 to demonstrate maintenance. 

Emissions estimates were generated for 

point sources, area sources, and the 

MAR portion of the nonroad mobile 

sector by applying growth factors and 

applicable emission controls to the 2005 

emissions inventory. The 2005 

emissions inventory was developed 

following the same methodologies 

described for the 2002 inventory, in 

section VI.A.3.b., above. Growth factors 

include the Census Bureau’s County 

Business Pattern employment data, 

growth factors developed for LADCO by 

Pechan; and EGAS6.0. Growth factors 

were only available for emission 

projections to 2018. Emissions for 2020 

were estimated using linear 

interpolation from 2018. For Electric 

Generating Unit (EGU) point sources, 

projections were performed on a facility 

by facility basis. The growth in 

generation emissions considers 

corporate utility growth in electricity 

demand and the potential dispatch by 

the regional Midwest Independent 

Transmission System Operator to meet 

broader demand. The growth in 

electricity consumption by load type is 

based on growth rate projections by the 

Wisconsin Public Service Commission 

and historic growth rates. Nonroad 

mobile emissions, excluding MAR, were 

calculated using NMIM with the 

modifications and additions to the input 

data described in section VI.A.3.b., 

above. Onroad mobile source emissions 

were calculated using the MOBILE6.2 

emissions model. Emissions data are 

shown in Tables 7 through 11, below. 

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2There is more uncertainty about the use of SO2

allowances and future projections for SO2

emissions; thus, further review and discussion will 

be needed regarding the appropriateness of using 

these emission projections for future PM2.5 SIP 

approvals and redesignation requests. 

The emission projections show that 

Wisconsin does not expect emissions in 

the Manitowoc County and Door County 

areas to exceed the level of the 2007 

attainment year inventory during the 

maintenance period, even without 

implementation of CAIR. (See also 

discussion below.) As shown in Table 9, 

VOC and NOX emissions in the 

Manitowoc County area are projected to 

decrease by 0.99 tpd and 3.88 tpd, 

respectively, between 2007 and 2020. 

As shown in Table 10, VOC and NOX

emissions in the Door County area are 

projected to decrease by 2.96 tpd and 

1.27 tpd, respectively, between 2007 

and 2020. In addition, as shown in 

Table 11, VOC and NOX emissions in 

the upwind areas of Sheboygan and 

Milwaukee-Racine are projected to 

decrease by 16.20 tpd and 66.63 tpd, 

respectively, between 2007 and 2020. 

In addition, LADCO performed a 

regional modeling analysis to address 

the effect of the recent court decision 

vacating CAIR. This analysis is 

documented in LADCO’s ‘‘Regional Air 

Quality Analyses for Ozone, PM2.5, and 

Regional Haze: Final Technical Support 

Document (Supplement), September 12, 

2008.’’ LADCO produced a base year 

inventory for 2005 and future year 

inventories for 2009, 2012, and 2018. To 

estimate future EGU NOX emissions 

without implementation of CAIR, 

LADCO projected 2007 EGU NOX

emissions for all States in the modeling 

domain based on Energy Information 

Administration growth rates by State 

(North American Electric Reliability 

Corporation (NERC) region) and fuel 

type for the years 2009, 2012 and 2018. 

The assumed 2007–2018 growth rates 

were 8.8% for Illinois, Iowa, Missouri 

and Wisconsin; 13.5% for Indiana, 

Kentucky, Michigan and Ohio; and 

15.1% for Minnesota. Emissions were 

adjusted by applying legally enforceable 

controls, e.g., consent decree or rule. 

EGU NOX emissions projections for the 

States of Illinois, Indiana, Michigan, 

Ohio, and Wisconsin are shown below 

in Table 12. The emission projections 

used for the modeling analysis do not 

account for certain relevant factors such 

as allowance trading and potential 

changes in operation of existing control 

devices. The NOX projections indicate 

that, due to the NOX SIP Call, certain 

State rules, consent decrees resulting 

from enforcement cases, and ongoing 

implementation of a number of mobile 

source rules, EGU NOX is not expected 

to increase in Wisconsin, or any of the 

States in the immediate region, and 

overall NOX emissions in Wisconsin, 

and the nearby region are expected to 

decrease substantially between 2005 

and 2020.2 Total NOX emissions 

projections are shown in Table 13, 

below. 


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TABLE 12—EGU NOX EMISSIONS FOR THE STATES OF ILLINOIS, INDIANA, MICHIGAN, OHIO AND WISCONSIN (TPD) FOR

2007, 2009, 2012, AND 2018 

2007 2009 2012 2018 

EGU ................................................................................................................................................. 1,582 1,552 1,516 1,524 

TABLE 13—TOTAL NOX EMISSIONS FOR THE STATES OF ILLINOIS, INDIANA, MICHIGAN, OHIO AND WISCONSIN (TPD) FOR

THE YEARS 2005, 2009, 2012, AND 2018 

2005 2009 2012 2018 

Total NOX ........................................................................................................................................ 8,260 6,778 6,076 4,759 

Given that 2007 is one of the years 

Wisconsin used to demonstrate 

monitored attainment of the 8-hour 

NAAQS, Table 12 shows that EGU NOX

emissions will remain below attainment 

levels through 2018. If the rate of 

emissions increase between 2012 and 

2018 continues through 2020, EGU NOX

emissions would still remain below 

attainment levels in 2020. Furthermore, 

as shown in Table 13, total NOX

emissions clearly continue to decrease 

substantially throughout the 

maintenance period. 

Ozone modeling performed by 

LADCO supports the conclusion that the 

Manitowoc County and Door County 

areas will maintain the standard 

throughout the maintenance period. 

Peak modeled ozone levels in the 

Manitowoc County area for 2009, 2012 

and 2018 are 0.081 ppm, 0.079 ppm, 

and 0.073 ppm, respectively. Peak 

modeled ozone levels in the Door 

County area for 2009, 2012 and 2018 are 

0.084 ppm, 0.081 ppm, and 0.076 ppm, 

respectively. These projected ozone 

levels were modeled applying only 

legally enforceable controls; e.g., 

consent decrees, rules, the NOX SIP 

Call, Federal motor vehicle control 

programs, etc. Because these programs 

will remain in place, emission levels, 

and therefore ozone levels, would not be 

expected to increase significantly 

between 2018 and 2020. Given that 

projected emissions and modeled ozone 

levels continue to decrease substantially 

through 2018, it is reasonable to infer 

that a 2020 modeling run would also 

show levels well below the 1997 8-hour 

ozone standard. 

EPA has considered the relationship 

of the maintenance plans to the 

reductions required pursuant to CAIR. 

This rule was remanded to EPA, and the 

process of developing a replacement 

rule is ongoing. However, the remand of 

CAIR does not alter the requirements of 

the NOX SIP Call, and Wisconsin has 

demonstrated maintenance without any 

additional CAIR requirements (beyond 

those required by the NOX SIP Call). 

Therefore, EPA believes that 

Wisconsin’s demonstration of 

maintenance under sections 175A and 

107(d)(3)(E) is valid. 

The NOX SIP Call requires States to 

make significant, specific emissions 

reductions. It also provided a 

mechanism, the NOX Budget Trading 

Program, which States could use to 

achieve those reductions. When EPA 

promulgated CAIR, it discontinued 

(starting in 2009) the NOX Budget 

Trading Program, 40 CFR 51.121(r), but 

created another mechanism, the CAIR 

ozone season trading program, which 

States could use to meet their SIP Call 

obligations (70 FR 25289–25290). EPA 

notes that a number of States, when 

submitting SIP revisions to require 

sources to participate in the CAIR ozone 

season trading program, removed the 

SIP provisions that required sources to 

participate in the NOX Budget Trading 

Program. In addition, because the 

provisions of CAIR, including the ozone 

season NOX trading program, remain in 

place during the remand, EPA is not 

currently administering the NOX Budget 

Trading Program. Nonetheless, all 

States, regardless of the current status of 

their regulations that previously 

required participation in the NOX

Budget Trading Program, will remain 

subject to all of the requirements in the 

NOX SIP Call even if the existing CAIR 

ozone season trading program is 

withdrawn or altered. In addition, the 

anti-backsliding provisions of 40 CFR 

51.905(f) specifically provide that the 

provisions of the NOX SIP Call, 

including the statewide NOX emission 

budgets, continue to apply after 

revocation of the 1-hour standard. 

All NOX SIP Call States have SIPs that 

currently satisfy their obligations under 

the SIP Call, the SIP Call reduction 

requirements are being met, and EPA 

will continue to enforce the 

requirements of the NOX SIP Call even 

after any response to the CAIR remand. 

For these reasons, EPA believes that 

regardless of the status of the CAIR 

program, the NOX SIP Call requirements 

can be relied upon in demonstrating 

maintenance. 

d. Monitoring Network 

Wisconsin currently operates one 

ozone monitor in Manitowoc County 

and one ozone monitor in Door County. 

Wisconsin has committed to continue to 

operate and maintain an approved 

ozone monitoring network in the 

Manitowoc County and Door County 

areas. WDNR has also committed to 

consult with EPA regarding any changes 

in siting that may become necessary in 

the future. Wisconsin remains obligated 

to continue to quality assure monitoring 

data in accordance with 40 CFR part 58 

and enter all data into the AQS in 

accordance with Federal guidelines. 

e. Verification of Continued Attainment 

Continued attainment of the ozone 

NAAQS in the Manitowoc County and 

Door County areas 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 Manitowoc County and 

Door County areas consists of continued 

ambient ozone monitoring in 

accordance with the requirements of 40 

CFR part 58. WDNR will also continue 

to develop and submit periodic 

emission inventories as required by the 

Federal Consolidated Emissions 

Reporting Rule (67 FR 39602, June 10, 

2002), and will evaluate future VOC and 

NOX emissions inventories for increases 

over the 2007 emission inventory 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 

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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 

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 

contingency plans for the Manitowoc 

County and Door County areas 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 

evaluate existing but not fully 

implemented, on-the way, and, if 

necessary, new control measures to 

correct the violation of the standard 

within 18 months. The State has 

confirmed EPA’s interpretation that this 

commitment means that the measure 

will be adopted and implemented 

within 18 months of the triggering 

event. 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. 

WDNR included the following list of 

potential contingency measures in its 

maintenance plans: 

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; 

ii. Develop an anti-idling control 

program for mobile sources targeting 

diesel vehicles; 

iii. Adopt a rule reducing VOC 

content in architectural, industrial and 

maintenance coatings; and 

iv. Adopt a rule reducing VOC 

content in commercial and consumer 

products. 

g. Provisions for Future Updates of the 

Ozone Maintenance Plan 

As required by section 175A(b) of the 

CAA, WDNR commits to submit to the 

EPA updated ozone maintenance plans 

eight years after redesignation of the 

Manitowoc County and Door County 

areas to cover an additional ten-year 

period beyond the initial ten-year 

maintenance period. As required by 

section 175A of the CAA, Wisconsin has 

committed to retain the VOC and NOX

control measures contained in the SIP 

prior to redesignation. 

EPA has concluded that the 

maintenance plans adequately address 

the five basic components of a 

maintenance plan: Attainment 

inventory, maintenance demonstration, 

monitoring network, verification of 

continued attainment, and a 

contingency plan. Thus EPA proposes to 

find that the maintenance plan SIP 

revisions submitted by Wisconsin for 

the Manitowoc County and Door County 

areas meet the requirements of section 

175A of the CAA. 

B. Adequacy of Wisconsin’s MVEBs 

1. How are MVEBs developed and what 

are the MVEBs for the Manitowoc 

County and Door County areas? 

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., RFP 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 onroad 

transportation sources. 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). 

Under section 176(c) of the CAA, new 

transportation projects that receive 

Federal funding or support, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the SIP. 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 approve or find that 

the MVEBs are ‘‘adequate’’ for use in 

determining transportation conformity 

before the MVEBs can be used. Once 

EPA affirmatively approves or finds the 

submitted MVEBs to be adequate for 

transportation conformity purposes, the 

MVEBs must be 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 taking 

action on the MVEB. The process for 

determining the adequacy of submitted 

SIP MVEBs is codified at 40 CFR 93.118. 

The maintenance plans submitted by 

Wisconsin for the Manitowoc County 

and Door County areas contain new 

VOC and NOX MVEBs for the areas for 

the years 2012 and 2020. The 

availability of the SIP submission with 

these 2012 and 2020 MVEBs was 

announced for public comment on 

EPA’s Adequacy Web site on February 

24, 2010, at: http://www.epa.gov/otaq/ 

stateresources/transconf/currsips.htm. 

The EPA public comment period on 

adequacy of the 2012 and 2020 MVEBs 

for the Manitowoc County and Door 

County areas closed on March 26, 2010. 

No adverse comments on the submittal 

were received during the adequacy 

comment period. 

EPA, through this rulemaking, has 

found adequate and is proposing to 

approve the MVEBs for use to determine 

transportation conformity in the 

Manitowoc County and Door County 

areas, because EPA has determined that 

the areas 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 Manitowoc County and Door 

County areas to be 1.76 tpd for VOC and 

3.76 tpd for NOX, and 0.78 tpd for VOC 

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and 1.55 tpd for NOX, respectively. 

WDNR has determined the 2020 MVEBs 

for the Manitowoc County and Door 

County areas to be 1.25 tpd for VOC and 

1.86 tpd for NOX, and 0.53 tpd for VOC 

and 0.74 tpd for NOX, respectively. 

These MVEBs are consistent with the 

onroad mobile source VOC and NOX

emissions projected by the Wisconsin 

Department of Transportation for 2012 

and 2020, as summarized in Tables 9 

and 10 above. Wisconsin has 

demonstrated that the Manitowoc 

County area can maintain the 8-hour 

ozone NAAQS with mobile source 

emissions of 1.76 tpd and 1.25 tpd of 

VOC and 3.76 tpd and 1.86 tpd of NOX

in 2012 and 2020, respectively, since 

emissions will remain under attainment 

year emission levels. Wisconsin has 

demonstrated that the Door County area 

can maintain the 8-hour ozone NAAQS 

with mobile source emissions of 0.78 

tpd and 0.53 tpd of VOC and 1.55 tpd 

and 0.74 tpd of NOX in 2012 and 2020, 

respectively, since emissions will 

remain under attainment year emission 

levels. 

C. 2005 Base Year Emissions Inventories 

As discussed above, section 172(c)(3) 

of the CAA requires areas to submit a 

base year emissions inventory. On June 

12, 2007, WDNR submitted a 2005 base 

year emissions inventory to meet this 

requirement. Emissions contained in the 

submittal cover the general source 

categories of point sources, area sources, 

on-road mobile sources, and non-road 

mobile sources. All emission summaries 

were accompanied by descriptions of 

emission calculation procedures and 

sources of input data. 

Point source sector emissions 

inventories were developed using 

reported point source emissions, EPA’s 

Clean Air Markets database and 

approved EPA techniques for emissions 

calculations. Emissions were estimated 

by collecting process-level information 

from each facility that qualifies for 

inclusion into WDNR’s point source 

database. Process, boiler, fugitive and 

tank emissions were typically calculated 

using throughput information 

multiplied by an emission factor for the 

process. Emission factor sources 

included mass balance, stack testing, 

continuous emissions monitors, 

engineering judgment and EPA’s Factor 

Information Retrieval database. 

Area source emissions were 

calculated using population, gasoline 

consumption, employment, crop 

acreages, and other activity surrogates. 

The results of an EPA Solvent Mass 

Balance study were used to estimate 

emissions for some categories. Emission 

factors were derived from local data, 

local or national surveys and EPA 

guidance for the development of 

emissions inventories. Point source 

emissions were subtracted from total 

category specific area source emissions 

to prevent double counting. 

Nonroad mobile source emissions 

were calculated using EPA’s NMIM and 

emissions estimates developed for 

commercial marine vessels, aircraft, and 

railroads (MAR), three nonroad 

categories not included in NMIM. 

Before NMIM was run, the following 

modifications and additions were made 

to the NMIM input data: (1) Revised 

activity data for construction equipment 

using updates provided by Pechan; (2) 

revised allocation data for recreational 

marine equipment using updates 

provided by ENVIRON International 

Corporation (ENVIRON); (3) added 

emission factors for diesel tampers/ 

rammers provided by Pechan; (4) 

revised population data for construction 

and recreational marine equipment 

using updates provided by Pechan and 

ENVIRON, respectively; (5) revised 

growth rates using updates provided by 

Pechan; and (6) revised gasoline 

parameters, including Reid Vapor 

Pressure, oxygenate content and sulfur 

content, using updates provided by the 

States and Pechan. Onroad mobile 

source emissions were calculated using 

the MOBILE6.2 emissions model. 

The 2005 summer day emissions of 

VOC and NOX for the Manitowoc 

County and Door County areas are 

summarized in Table 14, below. EPA is 

proposing to approve these 2005 base 

year inventories as meeting the section 

172(c)(3) emissions inventory 

requirement. 

VII. What actions is EPA taking? 

EPA is proposing to determine that 

the Manitowoc County and Door County 

areas have attained the 1997 8-hour 

ozone NAAQS. EPA is proposing to 

approve the redesignations of the 

Manitowoc County and Door County 

areas from nonattainment to attainment 

for the 1997 8-hour ozone NAAQS. 

After evaluating the redesignation 

requests submitted by Wisconsin, EPA 

believes that the requests meet the 

redesignation criteria set forth in section 

107(d)(3)(E) of the CAA. The final 

approval of these redesignation requests 

would change the official designations 

for the Manitowoc County and Door 

County areas from nonattainment to 

attainment for the 1997 8-hour ozone 

standard. EPA is also proposing to 

approve the maintenance plan SIP 

revisions for the Manitowoc County and 

Door County areas. EPA’s proposed 

approvals of the maintenance plans is 

based on the State’s demonstration that 

the plans meet the requirements of 

section 175A of the CAA, as described 

more fully above. EPA is proposing to 

approve WDNR’s 2005 base year 

emissions inventories for the 

Manitowoc County and Door County 

areas as meeting the requirements of 

section 172(c)(3) of the CAA. Finally, 

EPA finds adequate and is proposing to 

approve Wisconsin’s 2012 and 2020 

MVEBs for the Manitowoc County and 

Door County areas. 

VIII. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

107(d)(3)(E) are actions that affect the 

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by State law. A redesignation 

to attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 


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Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Proposed Rules 22063 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the Clean Air Act. Accordingly, these 

actions merely do not impose additional 

requirements beyond those imposed by 

State law and the Clean Air Act. For that 

reason, these actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Do 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); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Are not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Nitrogen dioxides, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control. 

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

Dated: April 14, 2010. 

Walter W. Kovalick Jr., 

Acting Regional Administrator, Region 5. 

[FR Doc. 2010–9753 Filed 4–26–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS-R8-ES-2010-0006] 

[MO 92210-0-0008 B2] 

Endangered and Threatened Wildlife 

and Plants; 90–day Finding on a 

Petition to List the Mohave Ground 

Squirrel as Endangered with Critical 

Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90–day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90–day finding on a petition to list the 

Mohave ground squirrel 

(Xerospermophilus mohavensis) as an 

endangered species under the 

Endangered Species Act of 1973, as 

amended (Act). Based on our review, we 

find that the petition presents 

substantial scientific or commercial 

information indicating that listing the 

Mohave ground squirrel may be 

warranted. Therefore, with the 

publication of this notice, we are 

initiating a status review of the species 

to determine if listing the species is 

warranted. To ensure that this status 

review is comprehensive, we are 

requesting scientific and commercial 

data and other information regarding 

this species. Based on the status review, 

we will issue a 12–month finding on the 

petition, which will address whether 

the petitioned action is warranted, as 

provided in section 4(b)(3)(B) of the Act. 

We will make a determination on 

critical habitat for this species, which 

was also requested in the petition, if and 

when we initiate a listing action. 

DATES: To allow us adequate time to 

conduct this review, we request that we 

receive information on or before June 

28, 2010. After this date, you must 

submit information directly to the 

Ventura Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT

section below). Please note that we may 

not be able to address or incorporate 

information that we receive after the 

date noted above. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS-R8-ES-2010-0006 and then follow 

the instructions for submitting 

comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R8- 

ES-2010-0006; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Information Solicited section 

below for more information). 

FOR FURTHER INFORMATION CONTACT: 

Michael McCrary, Listing and Recovery 

Coordinator, Ventura Fish and Wildlife 

Office, 2593 Portola Road, Suite B, 

Ventura, CA 93003; telephone (805) 

644-1766; facsimile (805) 644-3958. If 

you use a telecommunications device 

for the deaf (TDD), call the Federal 

Information Relay Service (FIRS) at 

(800) 877-8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly review the status 

of the species (status review). For the 

status review to be complete and based 

on the best available scientific and 

commercial information, we request 

information on the Mohave ground 

squirrel from government agencies, 

Native American Tribes, the scientific 

community, industry, and any other 

interested parties. We seek information 

on: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

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