45252 Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 

1Certified ozone data for 2011 demonstrates that 

the areas continued to attain the 1997 8-hour ozone 

standard in 2011. EPA recognizes that the ozone 

data for 2007–2009 as well as the data for 2010 and 

2011 are impacted by emission reductions 

associated with the CAIR, which was promulgated 

in 2005, but remanded to EPA in 2008. The fact that 

the data reflect some reductions associated with the 

remanded and therefore not permanent CAIR, 

however, is not an impediment to redesignation in 

the circumstances presented here where WDNR’s 

demonstration and EPA’s own modeling 

demonstrates that the areas do not need reductions 

associated with the CAIR to attain the 1997 ozone 

NAAQS. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2009–0730; FRL–9702–9] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Wisconsin; Redesignation 

of the Milwaukee-Racine Area to 

Attainment for 1997 8-Hour Ozone 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a request 

from the Wisconsin Department of 

Natural Resources (WDNR) to 

redesignate the Milwaukee-Racine area 

to attainment for the 1997 8-hour 

National Ambient Air Quality Standard 

(NAAQS or standard). The MilwaukeeRacine area includes Milwaukee, 

Ozaukee, Racine, Washington, 

Waukesha, and Kenosha Counties. 

WDNR submitted this request on 

September 11, 2009, and supplemented 

the submittal on November 16, 2011. 

These submittals also requested the 

redesignation of the Sheboygan area 

(Sheboygan County) to attainment for 

the 1997 8-hour ozone NAAQS. EPA 

proposed to approve the redesignation 

of both areas on February 9, 2012, and 

provided a 30-day review and comment 

period. EPA received comments 

submitted on behalf of Sierra Club and 

Midwest Environmental Defense Center 

and from the Wisconsin Manufacturers 

and Commerce. EPA is not taking final 

action on the Sheboygan redesignation 

request at this time because preliminary 

2012 ozone monitoring data indicate 

that the area has violated the 1997 

standard. In addition to approving the 

redesignation of the Milwaukee-Racine 

area, EPA is taking several other related 

actions. EPA is approving, as a revision 

to the Wisconsin State Implementation 

Plan (SIP), the State’s plan for 

maintaining the 1997 8-hour ozone 

standard through 2022 in the 

Milwaukee-Racine area. EPA is 

approving the 2005 emissions 

inventories for the Milwaukee-Racine 

and Sheboygan areas as meeting the 

comprehensive emissions inventory 

requirement of the Clean Air Act (CAA 

or Act). Finally, EPA finds adequate and 

is approving the State’s 2015 and 2022 

Motor Vehicle Emission Budgets 

(MVEBs) for the Milwaukee-Racine area. 

DATES: Effective Date: This rule is 

effective on July 31, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2009–0730. All 

documents in the docket are listed on 

the www.regulations.gov web site. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–1767, 

dagostino.kathleen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background for this rule? 

II. What comments did we receive on the 

proposed rule? 

III. What actions is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background for this rule? 

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

promulgated an 8-hour ozone standard 

of 0.08 parts per million (ppm). EPA 

published a final rule designating and 

classifying areas under the 1997 8-hour 

ozone NAAQS on April 30, 2004 (69 FR 

23857). In that rulemaking, the 

Milwaukee-Racine area was designated 

as nonattainment for the 1997 8-hour 

ozone standard and classified as a 

moderate nonattainment area under 

subpart 2 of part D of the CAA (69 FR 

23857, 23947). 

On September 11, 2009, WDNR 

requested redesignation of the 

Milwaukee-Racine and Sheboygan areas 

to attainment of the 1997 8-hour ozone 

standard based on ozone data for the 

period of 2006–2008. On November 16, 

2011, WDNR supplemented the original 

ozone redesignation requests, revising 

the mobile source emission estimates 

using EPA’s on-road mobile source 

emissions model, MOVES, and 

extending the demonstration of 

maintenance of the ozone standard 

through 2022, with new MVEBs, but 

without relying on emission reductions 

resulting from implementation of EPA’s 

Clean Air Interstate Rule (CAIR) or 

Cross-State Air Pollution Rule (CSAPR). 

On March 1, 2011 (76 FR 11080), EPA 

issued a final rulemaking determining 

that the Milwaukee-Racine and 

Sheboygan areas had attained the 1997 

8-hour ozone NAAQS based on three 

years of complete, quality-assured ozone 

data for the 2006–2008, 2007–2009, and 

2008–2010 time periods.1

On February 9, 2012 (77 FR 6727), 

EPA issued a rulemaking action 

proposing to approve Wisconsin’s 

requests to redesignate the MilwaukeeRacine and Sheboygan areas to 

attainment of the 1997 8-hour ozone 

standard, as well as proposing to 

approve Wisconsin’s maintenance plans 

for the areas, volatile organic compound 

(VOC) and nitrogen oxides (NOX) 

MVEBs, and VOC and NOX emissions 

inventories. This proposed rulemaking 

sets forth the basis for determining that 

Wisconsin’s redesignation request meets 

the CAA requirements for redesignation 

of the Milwaukee-Racine area to 

attainment for the 1997 8-hour ozone 

NAAQS. Air quality monitoring data in 

the Milwaukee-Racine and Sheboygan 

areas for 2007–2009, 2008–2010, and 

2009–2011 show attainment of the 1997 

8-hour ozone NAAQS. Preliminary data 

available for the Milwaukee area for 

2012 are consistent with continued 

attainment. Preliminary 2012 data for 

the Sheboygan area, however, indicate 

that the area is currently violating the 

1997 8-hour ozone standard. For this 

reason, EPA is not finalizing action on 

the State’s request to redesignate the 

Sheboygan area at this time. The 

primary background for today’s action is 

contained in EPA’s February 9, 2012, 

proposal to approve Wisconsin’s 

redesignation requests, and in EPA’s 

March 1, 2011, final rulemaking 

determining that the areas have attained 

the 1997 8-hour ozone NAAQS, based 

on complete, quality-assured monitoring 


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Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 45253 

data for 2006–2008, 2007–2009, and 

2008–2010 time periods. In these 

rulemakings, we noted that under EPA 

regulations at 40 CFR 50.10 and 40 CFR 

part 50 appendix I, the 1997 8-hour 

ozone standard is attained when the 3- 

year average of the annual fourth 

highest daily maximum 8-hour average 

ozone concentrations is less than or 

equal to 0.08 ppm at all ozone 

monitoring sites in the area. See 69 FR 

23857 (April 30, 2004) for further 

information. To support the 

redesignation of an area to attainment of 

the NAAQS, the ozone data must be 

complete for the three attainment years. 

The data completeness requirement is 

met when the 3-year average of days 

with valid ambient monitoring data is 

greater than 90 percent, and no single 

year has less than 75 percent data 

completeness, as determined in 

accordance with appendix I of 40 CFR 

part 50. Under the CAA, EPA may 

redesignate a nonattainment area to 

attainment if sufficient, complete, 

quality-assured data are available 

demonstrating that the area has attained 

the standard and if the state meets the 

other CAA redesignation requirements 

specified in section 107(d)(3)(E) and 

section 175A. 

The February 9, 2012, proposed 

redesignation rulemaking provides a 

detailed discussion of how Wisconsin’s 

ozone redesignation request for the 

Milwaukee-Racine area meets the CAA 

requirements for redesignation to 

attainment. With the final approval of 

its VOC and NOX emissions inventories, 

and its VOC Reasonably Available 

Control Technology (RACT) regulations, 

Wisconsin has met all applicable CAA 

requirements for redesignation to 

attainment of the area for the 1997 8- 

hour ozone NAAQS. Complete, qualityassured, and certified air quality 

monitoring data in the MilwaukeeRacine area for 2009–2011, and 

preliminary data for 2012, show that 

this area continues to attain the 1997 8- 

hour ozone NAAQS. In the maintenance 

plan it submitted for this area, 

Wisconsin has demonstrated that 

attainment of the 1997 8-hour ozone 

NAAQS will be maintained in the 

Milwaukee-Racine area through 2022, 

with or without the implementation of 

CAIR or CSAPR. In addition, modeling 

conducted by EPA during the CSAPR 

rulemaking demonstrates that in both 

2012 and 2014, even without taking into 

account reductions associated solely 

with CAIR or CSAPR, the counties in 

the Milwaukee-Racine nonattainment 

area will have air quality that attains the 

1997 ozone NAAQS. Finally, Wisconsin 

has adopted 2015 and 2022 MVEBs that 

are supported by Wisconsin’s ozone 

maintenance demonstrations and 

Wisconsin has adopted an ozone 

maintenance plan. 

II. What comments did we receive on 

the proposed rule? 

EPA provided a 30-day comment 

period for the February 9, 2012, 

proposed rule. During the comment 

period, Wisconsin Manufacturers and 

Commerce submitted comments in 

support of the actions and we received 

one set of comments objecting to the 

redesignation of the Milwaukee-Racine 

area submitted on behalf of the Sierra 

Club and the Midwest Environmental 

Defense Center. The adverse comments 

are summarized and addressed below. 

Comment 1: The commenter asserts 

that the redesignation of the MilwaukeeRacine area to attainment of the 1997 8- 

hour ozone standard would violate the 

CAA because the State of Wisconsin and 

EPA have not ensured that 

nonattainment area New Source Review 

(NSR) would apply after redesignation. 

The commenter contends that such a 

situation conflicts with the language of 

section 107(d)(3)(E)(v) of the CAA, 

which requires the State to have met all 

requirements of part D of the CAA, since 

part D includes requirements for NSR. 

The commenter argues that the 

requirements of section 107(d)(3)(E)(v) 

make no sense if the State’s NSR 

program is not required to apply in the 

area after redesignation. The commenter 

further argues that, at a minimum, a 

requirement for NSR should be included 

in the State’s ozone maintenance plan as 

a contingency measure to be 

implemented if the area subsequently 

violates the 1997 8-hour ozone standard. 

The commenter contends that EPA 

cannot rely on certain policy 

memoranda to support its approval of 

the State’s ozone redesignation request 

and ozone maintenance plan without 

the requirement for the implementation 

of the NSR program in the MilwaukeeRacine area after redesignation. 

Response 1: As clearly stated in EPA’s 

October 14, 1994, policy memorandum 

from Mary D. Nichols entitled ‘‘Part D 

New Source Review (part D NSR) 

Requirements for Areas Requesting 

Redesignation to Attainment,’’ ‘‘EPA 

believes it is reasonable to interpret 

‘measure,’ as used in section 175A(d), 

not to include part D NSR.’’ Congress 

used the undefined term ‘‘measure’’ 

differently in different provisions of the 

Act, which indicates that the term is 

susceptible to more than one 

interpretation and that EPA has the 

discretion to interpret it in a reasonable 

manner in the context of section 175A. 

See Greenbaum v. EPA, 370 F.3d 527, 

535–38 (6th Cir. 2004). (Court ‘‘find[s] 

persuasive the EPA’s argument that the 

very nature of the NSR permit program 

supports its interpretation that it is not 

intended to be a contingency measure 

pursuant to section 175A(d).’’) It is 

reasonable to interpret ‘‘measure’’ to 

exclude part D NSR in this context 

because Prevention of Significant 

Deterioration (PSD), a program that is 

the corollary of part D NSR for 

attainment areas, goes into effect in lieu 

of part D NSR upon redesignation. PSD 

requires that new sources demonstrate 

that emissions from their construction 

and operation will not cause or 

contribute to a violation of any NAAQS 

or PSD increment. The State has 

demonstrated that the areas will be able 

to maintain the standard without Part D 

NSR in effect, and the State’s PSD 

program will become effective in the 

areas upon redesignation to attainment. 

See the rationale set forth at length in 

the Nichols Memorandum. See also the 

discussions of why full approval and 

retention of NSR is not required in 

redesignation actions in the following 

redesignation rulemakings: 60 FR 

12459, 12467–12468 (March 7, 1995) 

(Detroit, MI); 61 FR 20458, 20469–20470 

(May 7, 1996) (Cleveland-AkronLorrain, OH); 66 FR 53665, 53669 

(October 23, 2001) (Louisville, KY); 61 

FR 31831, 31836–31837 (June 21, 1996) 

(Grand Rapids, MI); 73 FR 29436, 

29440–29441 (May 21, 2008) (Kewaunee 

County, WI); 77 FR 34819, 34826–34827 

(June 12, 2012) (Illinois portion of St. 

Louis, MO–IL). 

Comment 2: The commenter contends 

that the State of Wisconsin does not 

have a complete PSD program. 

Therefore, the commenter argues that 

EPA cannot rely on Wisconsin’s PSD 

program being effective and 

immediately applicable upon 

redesignation of the Milwaukee-Racine 

area. For this reason, and the argument 

set forth in comment 1 above, the 

commenter contends that Wisconsin’s 

ozone redesignation request and ozone 

maintenance plan do not meet the 

requirements of section 107(d)(3)(E) of 

the CAA. 

The commenter gives the following 

reasons (see Comments 2(a)–2(c)) for its 

assertion that Wisconsin’s PSD and NSR 

programs are inadequate for purposes of 

redesignation to attainment. 

Comment 2(a): The commenter 

contends that Wisconsin’s PSD program 

does not comply with the requirement 

in EPA’s 1997 8-hour ozone 

implementation phase 2 rule that NOX

be considered as an ozone precursor 

under PSD. The commenter argues that 

the definition in Wisconsin’s NSR and 

PSD regulations specifies only VOC to 


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2Wisconsin’s rules at NR 405.09, NR 405.10 and 

NR 405.11 meet the requirements of 40 CFR 

51.166(k), (l), and (m), respectively. 

be regulated as an ozone precursor. The 

commenter claims that this allows new 

or modified sources to add or increase 

NOX emissions without analyzing their 

impacts on ozone levels. The 

commenter contends that EPA has 

recently found similar SIPs to be 

deficient on this basis, and cites EPA’s 

rulemaking at 75 FR 79300 (December 

20, 2010, Mississippi PSD rules). 

Response 2(a): EPA believes that the 

commenter is mistaken in its view, and 

that in fact Wisconsin interprets and 

implements its NSR and PSD 

regulations to include NOX as a 

precursor for ozone. Wisconsin has an 

approved PSD program that includes 

ozone as a regulated NSR pollutant. See 

NR 405.02(25i), Wisconsin 

Administrative Code. While the 

commenter is correct in stating that 

Wisconsin’s rule does not specifically 

list NOX as a precursor for ozone, the 

rule does define ‘‘regulated NSR air 

contaminant’’ to include ‘‘any air 

contaminant for which a national 

ambient air quality standard has been 

promulgated and any constituents or 

precursors for the air contaminants 

identified by the administrator * * *.’’ 

See NR 405.02(25i)(a). EPA has 

identified both VOCs and NOX as 

precursors to ozone in the definition of 

‘‘Regulated NSR Pollutant.’’ See 40 CFR 

51.166(b)(49)(i)(a), 52.21(b)(50)(i)(a). 

Wisconsin also sets a table of 

significant emissions rates for 

individual pollutants in the definition 

of significant at NR 405.02(27)(a). This 

table sets the significant emissions rate 

for ozone at 40 tons per year (tpy) of 

VOCs and separately sets the significant 

emissions rate for NOx at 40 tpy. 

Wisconsin interprets its 40 tpy 

significant emissions rate for nitrogen 

oxides contained in NR 405.02(27)(a) to 

apply to require both NO2 and ozone air 

quality analyses when emissions meet 

or exceed that emissions rate. Therefore, 

an increase in NOX emissions of 40 tpy 

or more will trigger the requirements to: 

(1) Obtain a PSD permit for ozone; 

(2) to perform an air quality analysis 

that demonstrates that the proposed 

source or modification will not cause or 

contribute to a violation of the ozone 

NAAQS; and (3) to apply best available 

control technology (BACT) for NOX. 

Wisconsin has confirmed this 

interpretation in a May 18, 2012, letter 

(hereafter, ‘‘Sponseller letter’’) and a 

June 6, 2012, email from Bart 

Sponseller, Director of the Bureau of Air 

Management, WDNR to Douglas 

Aburano, Chief of the Attainment 

Planning and Maintenance Section, Air 

Programs Branch, EPA Region 5. 

Although EPA is requiring Wisconsin to 

make revisions to its PSD regulations to 

specifically address NOX as a precursor 

to ozone for infrastructure SIP purposes, 

this interpretation means that 

Wisconsin is, in practice, requiring air 

quality analyses for ozone under its 

state PSD regulations consistent with 

Federal PSD regulations. 

Accordingly, the fact that Wisconsin’s 

approved PSD SIP does not yet 

explicitly identify NOX as a precursor to 

ozone as required by EPA’s Phase 2 

ozone implementation rule does not 

prevent the program from addressing 

and helping to assure maintenance of 

the ozone standard in accordance with 

CAA section 175A. 

EPA notes that Wisconsin is currently 

in the process of adopting permanent 

rules for submission to EPA to add NOX

as an explicit precursor to ozone 

consistent with the Federal regulations. 

Irrespective of the State’s ongoing 

regulatory actions, EPA concludes that 

the features of Wisconsin’s currently 

approved PSD program cited by the 

commenter do not detract from the 

program’s adequacy for purposes of 

maintenance of the standard and 

redesignation of the area. In light of the 

assurances provided to EPA in the 

Sponseller letter and email, Wisconsin’s 

currently approved PSD program is 

adequate for purposes of assuring 

maintenance of the 1997 8-hour ozone 

standard as required by section 175A. 

Comment 2(b): The commenter asserts 

that the State of Wisconsin does not 

conduct ambient air quality analyses for 

ozone standard compliance when 

issuing PSD permits, and that WDNR 

does not model ozone impacts, nor does 

it conduct other analyses of ozone 

impacts when issuing permits. The 

commenter therefore argues that 

Wisconsin’s PSD program does not 

ensure that new and modified sources 

will not cause additional ozone 

standard violations. 

Response 2(b): As discussed in 

response 2(a), Wisconsin has 

communicated to EPA that the State is 

implementing its existing regulations 

consistent with the requirements of the 

Federal PSD regulations that require an 

air quality analysis for ozone if a 

significant emissions rate of 40 tpy for 

VOC and/or NOX is reached or 

exceeded. 

Furthermore, Federal PSD regulations 

at 40 CFR 51.166(k), (l) and (m) and 40 

CFR 52.21(k), (l) and (m) contain 

requirements for ambient impact 

analyses for proposed major stationary 

sources and major modifications to 

obtain a PSD permit. These 

requirements apply for ozone when 

such sources or modifications trigger 

PSD review for ozone, but do not 

necessarily require quantitative 

modeling for ozone in all cases.2 See 

Letter from Gina McCarthy, EPA 

Assistant Administrator, Office of Air 

and Radiation, to Robert Ukeiley (Jan. 4, 

2012) at 2; In Re CF&I Steel, L.P. dba 

EVRAZ Rocky Mountain Steel, Petition 

Number VIII–2011–01 (Order on 

Petition) (May 31, 2012) at 21–22. The 

regulations at 40 CFR 51.166(l) state that 

for air quality models the SIP shall 

provide for procedures which specify 

that all applications of air quality 

modeling involved in this subpart shall 

be based on the applicable models, data 

bases, and other requirements specified 

in appendix W of part 51 (Guideline on 

Air Quality Models). Where an air 

quality model specified in appendix W 

of part 51 (Guideline on Air Quality 

Models) is inappropriate, the model 

may be modified or another model 

substituted. Such a modification or 

substitution of a model may be made on 

a case-by-case basis or, where 

appropriate, on a generic basis for a 

specific State program. Written approval 

of the Administrator must be obtained 

for any modification or substitution. In 

addition, use of a modified or 

substituted model must be subject to 

notice and opportunity for public 

comment under procedures set forth in 

§ 51.102. See also 40 CFR 52.21(l). 

The above-referenced parts of 40 CFR 

part 51 and 52 contain the umbrella 

components for ambient air quality and 

source impact analyses for PSD 

permitting. PSD requirements for SIPs 

are found in 40 CFR 51.166. As 

discussed above, sections 51.166(l) and 

52.21(l), and Wisconsin rule NR 405.10, 

refer to 40 CFR part 51, appendix W for 

the appropriate method to utilize for the 

ambient impact assessment. 40 CFR part 

51, appendix W is the Guideline on Air 

Quality Models and Section 1.0.a. states 

that the Guideline recommends air 

quality modeling techniques that should 

be applied to State Implementation Plan 

(SIP) revisions for existing sources and 

to new source review (NSR), including 

prevention of significant deterioration 

(PSD). {footnotes not included} 

Applicable only to criteria air 

pollutants, it is intended for use by EPA 

Regional Offices in judging the 

adequacy of modeling analyses 

performed by EPA, State and local 

agencies, and by industry. The 

Guideline is not intended to be a 

compendium of modeling techniques. 

Rather, it should serve as a common 

measure of acceptable technical analysis 

when support by sound scientific 

judgment. 


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3EPA has explained that given the complexities 

of ozone formation, its judgment has been that it 

was not technically sound to designate with 

particularity specific models that must be used to 

assess the impacts of a single source on ozone 

concentrations, but rather has provided a 

consultation process in appendix W for determining 

particular models or other analytical techniques 

that should be used on a case-by-case basis. See 

Letter from Gina McCarthy, EPA Assistant 

Administrator, Office of Air and Radiation to Robert 

Ukeiley (Jan. 4, 2012) at 2. However, EPA granted 

a petition for rulemaking on January 4, 2012, stating 

that it would engage in a rulemaking process to 

consider whether updates to EPA’s Guideline on Air 

Quality Models as published in appendix W are 

warranted, and, as appropriate, to incorporate new 

analytical techniques or models for ozone. Id at 1. 

4See, ‘‘Approval and Promulgation of 

Implementation Plans; Wisconsin,’’ 64 FR 28745 

(May 27, 1999). While the Phase 2 Rule obligates 

states to make explicit regulatory changes in order 

to clarify and remove any ambiguity concerning the 

requirement that NOX be treated as a precursor to 

ozone in permitting contexts, the State has 

authority in its PSD SIP to treat NOX as a precursor 

to ozone in permitting decisions, and the State is 

correctly interpreting its PSD and NSR regulations 

with regard to inclusion of NOX as a precursor to 

ozone as discussed in Response 2(a). 

Appendix W, section 5.2.1 includes 

the Guideline recommendations for 

models to be utilized in assessing 

ambient air quality impacts for ozone. 

Specifically, Section 5.2.1.c states that 

choice of methods used to assess the 

impact of an individual source depends 

on the nature of the source and its 

emissions. Thus, model users should 

consult with the Regional Office to 

determine the most suitable approach 

on a case-by-case basis (subsection 

3.2.2). 

Appendix W, section 5.2.1.c provides 

that the state and local permitting 

authorities and permitting applicants 

should work with the appropriate EPA 

Regional Office on a case-by-case basis 

to determine an adequate method for 

performing an air quality analysis for 

assessing ozone impacts. Due to the 

complexity of modeling ozone and the 

dependency on the regional 

characteristics of atmospheric 

conditions, EPA believes this is an 

appropriate approach, rather than 

specifying a method for assessing single 

source ozone impacts, which may not be 

appropriate in all circumstances.3

Instead, the choice of method ‘‘depends 

on the nature of the source and its 

emissions. Thus, model users should 

consult with the Regional Office to 

determine the most suitable approach 

on a case-by-case basis’’ appendix W, 

section 5.2.1.c. Thus, appendix W 

allows flexibility through the 

consultation process to determine either 

modeling based or other analysis 

techniques may be acceptable. Based on 

an evaluation of the source, its 

emissions and background ozone 

concentrations, an ozone impact 

analysis other than modeling may be 

required. Therefore, permitting 

authorities should consult and work 

with EPA Regional Offices as described 

in appendix W, including section 3.0.b 

and c, 3.2.2, and 3.3, to determine the 

appropriate approach to assess ozone 

impacts for each PSD required 

evaluation. Although EPA has not 

selected one particular preferred model 

in appendix A of appendix W 

(Summaries of Preferred Air Quality 

Models) for conducting ozone impact 

analyses for individual sources, 

permitting authorities in Wisconsin 

must comply with the appropriate PSD 

SIP requirements with respect to ozone. 

EPA has previously approved the 

State’s PSD program.4 EPA expects 

Wisconsin to consult with staff in the 

Region 5 Office on a case-by-case basis 

for permitting purposes to determine 

appropriate methods for assessing the 

impacts from specific sources on ozone 

concentrations. An example of such 

consultation is the permitting action for 

Aarrowcast, Inc. in Shawano, 

Wisconsin. 

Comment 2(c): The commenter 

contends that the Wisconsin SIP is 

deficient because it contains an 

unacceptable definition of ‘‘major 

modification’’ for purposes of NSR and 

PSD for sources involving fuel change. 

The commenter cites a June 17, 2009, 

letter from EPA to WDNR noting this 

definition problem in the Wisconsin 

SIP. The commenter asserts that because 

of this problem, emissions can increase 

as a result of non-exempt fuel changes 

without going through a PSD analysis, 

meaning that PSD provides no 

protection for the ozone NAAQS in 

some situations. 

Response 2(c): ‘‘Major modification’’ 

as it relates to PSD is generally defined 

in NR 405.02(21) of Wisconsin’s SIP. 

The exemptions to ‘‘physical change’’ or 

‘‘change in the method of operation’’ are 

contained at NR 405.02(21)(b). One 

exemption is the ability of a source 

capable of accommodating different 

types of fuels before 1975 to switch the 

type of fuel burned, unless prohibited 

by a restriction in a permit established 

after 1975. 

EPA regulations contained at 40 CFR 

51.166(b)(2)(iii)(e)(1) and (2) specifically 

prescribe when use of an alternative fuel 

is not considered a physical change for 

purposes of defining a ‘‘major 

modification.’’ These regulations require 

that a physical change or change in the 

method shall not include use of an 

alternative fuel or raw material by a 

stationary source which the source was 

capable of accommodating before 

January 6, 1975, unless such change 

would be prohibited under any 

Federally enforceable permit condition 

which was established after January 6, 

1975 pursuant to 40 CFR 52.21 or under 

regulations approved pursuant to 40 

CFR part 51, subpart I, or 40 CFR 

51.166; or the source is approved to use 

the fuel under any permit issued under 

40 CFR 52.21 or under regulations 

approved pursuant to 40 CFR 51.166. 

The Wisconsin regulations set out the 

conditions for the fuel change 

exemption as follows: 

The source was capable of accommodating 

the alternative fuel or raw material before 

January 6, 1975, unless the change would be 

prohibited under any federally enforceable 

permit condition which was established after 

January 6, 1975 pursuant to this chapter or 

ch. NR 406 or 408 or under an operation 

permit issued pursuant to ch. NR 407. 

[Or, t]he source is approved to use the 

alternative fuel or raw material under any 

permit issued under this chapter or ch. NR 

406, 407, or 408. See NR 405.02(21)(b)(5). 

The Wisconsin rule is similar to the 

Federal rule, but differs by substituting 

references to Wisconsin Administrative 

Code sections, and omitting reference to 

permits issued under the Federal 

program at 40 CFR 52.21. 

The commenter raised concerns that 

failure to cite Federal regulations results 

in the loss of prohibitions on fuel use 

exemptions that may have been 

contained in Federally-issued PSD 

permits, issued prior to EPA’s approval 

of Wisconsin’s PSD SIP, resulting in 

more exemptions to the definition of 

‘‘major modification’’ than allowed by 

the Federal rules. 

WDNR states that under its title V 

operating permit program, all applicable 

requirements to a source are included in 

its operation permit. As a result, WDNR 

states that it clearly recognizes that 

requirements contained in a Federallyissued PSD permit would be applicable 

requirements to the source and that they 

would be included in the source’s title 

V operating permit, therefore making 

the requirements fully enforceable 

under State and Federal law. WDNR has 

taken the position that this is a very 

narrow issue and has asserted that ‘‘to 

its knowledge it is not aware of a single 

situation where an omission has 

occurred in practice.’’ See Sponseller 

letter. While the commenter contends 

that emissions can ‘‘increase from nonexempt fuel changes without going 

through a PSD analysis,’’ the commenter 

has not provided information to support 

this assertion nor has he identified any 

instance where any such emissions 

increase has actually occurred. 

Although EPA is requiring Wisconsin 

to revise its PSD regulations to 

specifically address this issue for 


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5For example, EPA has recently issued a SIP call 

in Utah to rectify a specific SIP deficiency related 

to a startup, shutdown and malfunction issue. See, 

‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (April 

18, 2011). 

6EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 7See Calcagni memorandum, pp. 4 and 8–9. 

infrastructure SIP purposes, EPA agrees 

with WDNR that this issue is a very 

narrow one, and that an omission in 

practice is perhaps nonexistent. EPA 

recognizes that in practice, WDNR has 

the authority and means to ensure 

adherence to the prohibitions on fuel 

use exemptions in certain instances, 

consistent with our own definition of 

‘‘major modification.’’ Therefore, EPA 

concludes that the features of 

Wisconsin’s current PSD program cited 

by the commenter do not detract from 

the program’s adequacy for purposes of 

maintenance of the standard and 

redesignation of the area. 

Comment 3: The commenter asserts 

that, besides PSD and NSR deficiencies, 

the Wisconsin SIP contains several 

other deficiencies that are contrary to 

the requirements of section 110 of the 

CAA. 

The commenter claims that the 

Wisconsin SIP contains a source startup 

and shutdown excess emissions 

exemption that EPA has found to be not 

approvable and in conflict with section 

110 of the CAA. The commenter also 

asserts that the Wisconsin SIP contains 

‘‘illegal’’ Director’s Discretion 

provisions and that EPA has interpreted 

section 110 as prohibiting such SIP 

provisions. The commenter claims that 

the Wisconsin Administrative Code 

contains such provisions at NR 

436.03(2), NR 436.04, and NR 436.06. 

The commenter asserts that, historically, 

EPA has determined that it cannot 

approve SIPs as being adequate when 

they contain such Director’s Discretion 

provisions that have the potential to 

change the stringency of the SIP. 

Response 3: The issue before EPA in 

the current rulemaking action is a 

redesignation for the Milwaukee-Racine 

area for the 1997 8-hour ozone standard, 

including the maintenance plan, and 

comprehensive emissions inventories. 

The SIP provisions identified by the 

commenter are not currently being 

proposed for revision as part of the 

redesignation submittals. Because the 

rules cited by the commenter are not 

pending before EPA and/or are not the 

subject of this rulemaking action, EPA 

did not undertake a full SIP review of 

the individual provisions. It has long 

been established that EPA may rely on 

prior SIP approvals in approving a 

redesignation request plus any 

additional measures it may approve in 

conjunction with a redesignation action. 

See e.g., page 3 of the September 4, 

1992, memorandum from John Calcagni 

entitled ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment’’ (Calcagni Memorandum); 

Wall v. EPA, 265 F.3d 426 (6th Cir. 

2001); Southwestern Pennsylvania 

Growth Alliance v. Browner, 144 F.3d 

984 (6th Cir. 1998); 68 FR 25413, 25426 

(May 12, 2003) (St. Louis redesignation). 

The CAA does not require EPA in the 

context of a redesignation to attainment 

to revisit and address existing SIP 

provisions, and envisions that EPA may 

address such issues separately and 

outside the context of action on a 

redesignation request. 

The CAA provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These statutory tools allow EPA to take 

appropriate tailored action, depending 

upon the nature and severity of the 

alleged SIP deficiency. Section 110(k)(5) 

authorizes EPA to issue a ‘‘SIP call’’ 

whenever the Agency determines that a 

state’s SIP is substantially inadequate to 

attain or maintain the NAAQS, to 

mitigate interstate transport, or 

otherwise to comply with the CAA.5

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.6

Comment 4: The commenter argues 

that EPA has not demonstrated that the 

reduction in ozone pollution in the 

Milwaukee-Racine area is due to 

permanent and enforceable emission 

reductions. The bases for the 

commenter’s assertion are set forth in 

comments 4(a) through (f). 

Comment 4a: The commenter asserts 

that comparing 2005 and 2008 

emissions in the Milwaukee-Racine 

ozone nonattainment area is not an 

adequate method to demonstrate that 

the ozone air quality improvement in 

this area is due to the implementation 

of permanent and enforceable emission 

control measures, in keeping with 

section 107(d)(3)(E)(iii) of the CAA. The 

commenter contends that the calculated 

change in VOC and NOX emissions 

between 2005 and 2008 does not show 

that the emission changes were due to 

permanent and enforceable emission 

reductions, as opposed to temporary 

emission reductions and/or emission 

reductions due to factory output 

slowdowns (under utilization of factory 

capacity) or recession-related output 

and transportation declines. 

To support the commenter’s assertion, 

the commenter compares 2008 

permitted (allowable) NOX emissions for 

electric power plants in the MilwaukeeRacine area with the total point source 

NOX emissions documented by EPA for 

this area in EPA’s Milwaukee-Racine 

area ozone redesignation proposed rule. 

The commenter shows that the 

permitted NOX emissions from only the 

electric power plants in the MilwaukeeRacine area exceed the actual 2008 NOX

emissions for all point sources in the 

Milwaukee-Racine area reported by EPA 

in the proposed rule for the 

redesignation of the Milwaukee-Racine 

area to attainment of the 1997 8-hour 

ozone standard, 77 FR 6738. The 

commenter contends that the 

comparison of permitted NOX emissions 

(electric generating plants) and actual, 

reported NOX emissions (all point 

sources) shows that facilities can 

lawfully emit at much higher rates. 

Therefore, the commenter asserts that 

EPA has not properly considered 

permanent and enforceable emission 

reductions. 

Response 4a: EPA’s longstanding 

practice and policy 7 provide for states 

to demonstrate permanent and 

enforceable emissions reductions by 

comparing nonattainment area 

emissions occurring during the 

nonattainment period with emissions in 

the area during the attainment period. 

Therefore, selecting 2008 as a 

representative attainment year, and 

comparing emissions for this year to 

those of a representative year during the 

nonattainment period, 2005, is an 

appropriate and long-established 

approach to demonstrate that emission 

reductions occurred in the area between 

the years of nonattainment and 

attainment. These reductions, therefore, 

can be seen to account for the observed 

air quality improvement. 

As discussed in the proposed rule at 

77 FR 6727, 6737–6738 (February 9, 

2012), Wisconsin and upwind areas 

have implemented a number of 

permanent and enforceable regulatory 

control measures which have reduced 

emissions and resulted in a 

corresponding improvement in air 

quality. These controls include 

regulations to control NOX emissions at 

electric utilities and large industrial 

combustion sources and establish NOX

emissions standards for new sources; 


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8See Calcagni Memorandum, pp. 4 and 8–9. 9See Calcagni memorandum, pp. 4 and 8–9. 

10See 2008 NOx Budget Trading Program 

Progress Report, http://www.epa.gov/airmarkets/ 

progress/NBP_4.html. 

Tier 2 emission standards for vehicles; 

and the nonroad diesel rule. In addition 

a broad range of emission sectors were 

required to reduce ozone precursors as 

a result of being subject to Federal new 

source performance standards, national 

emissions standards for hazardous air 

pollutants, and maximum achievable 

control technology standards with 

compliance requirements that take effect 

over the relevant time period. Further, 

Federal control measures as well as the 

NOX SIP Call have resulted in reduced 

ozone precursors being transported into 

the area. While the commenter 

expressed concerns that the emissions 

reductions may be temporary and/or 

due to factory output slowdowns 

(underutilization of factory capacity) or 

recession-related output and 

transportation declines, the commenter 

has made no demonstration that this is 

the case. 

With regard to consideration of actual 

versus allowable/permitted emission 

levels, longstanding practice and EPA 

policy support the use of actual 

emissions when demonstrating 

permanent and enforceable emission 

reductions.8 Changes in actual 

emissions are more reflective of 

emission reductions that in reality 

contribute to improvements in 

monitored ozone concentrations. 

Sources seldom, if ever, emit at 

maximum allowable emission levels, 

and assuming that all sources 

simultaneously operate at maximum 

capacity would result in a gross 

overestimation of emission levels. For 

this reason, EPA believes actual 

emissions are the appropriate emission 

levels to consider when comparing 

nonattainment year emissions with 

attainment year emissions. 

Comment 4b: The commenter 

contends that neither EPA nor the State 

of Wisconsin made any calculation of 

the amounts of emission reduction that 

actually resulted from the 

implementation of permanent and 

enforceable emission controls. The 

commenter asserts that there was no 

connection between the reported change 

in actual emissions and the enforceable 

emission reduction requirements 

implemented in the Milwaukee-Racine 

area. 

The commenter objects to EPA’s 

listing of implemented emission control 

requirements as a demonstration that 

such emission control requirements 

have resulted in the observed ozone air 

quality improvement in the MilwaukeeRacine area. The commenter states that 

EPA has not estimated the emission 

impacts of each of the implemented 

emission control requirements and 

contends that EPA has not tied such 

emissions impacts to the reported 

change in actual emissions between 

2005 and 2008. 

Response 4b: EPA’s conclusion here is 

fully supported by the facts and 

applicable legal criteria. EPA’s 

longstanding practice and policy 9

provides for states to demonstrate 

permanent and enforceable emissions 

reductions by comparing nonattainment 

area emissions occurring during the 

nonattainment period with emissions in 

the area during the attainment period. 

See response 4a. 

Therefore, selecting 2008 as a 

representative attainment year, and 

comparing emissions for this year to 

those for a representative year during 

the nonattainment period, 2005, is an 

appropriate and long-established 

approach to establish that emission 

reductions occurred in the area between 

the years of nonattainment and 

attainment. These emission reductions, 

therefore, can be seen to account for the 

observed air quality improvement. 

In developing the attainment year 

emissions inventory, the State took into 

account permanent and enforceable 

emissions control programs being 

implemented when estimating 

emissions. The change in emissions 

from 2005 to 2008 is shown in Table 4 

in the proposed rule (77 FR 6727, 6738). 

For point sources, the State’s 

emissions estimates factored in process 

information, operation information and 

control factors. Wisconsin adopted NOX

RACT regulations to control NOX

emissions at electric utilities and large 

industrial combustion sources and 

established NOX emissions standards for 

new sources. The regulation of existing 

sources was estimated to achieve a 30 

ton per day (tpd) reduction in NOX by 

2003 and a 55 tpd reduction by 2007, 

i.e., approximately a 25 tpd reduction 

between 2003, a nonattainment year and 

2007, an attainment year. 

For area sources, emissions are 

strongly associated with population 

levels. Therefore, although controls 

were considered in area source 

calculations, emissions grew slightly 

between 2005 and 2008 as a result of 

population growth. 

Reductions in VOC and NOX

emissions have occurred as a result of 

Federal mobile source emission control 

measures, with additional emission 

reductions expected to occur over the 

maintenance period. These measures 

include Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards, 

the Heavy-Duty Diesel Engine Rule, and 

the Nonroad Diesel Rule. Emissions 

reductions from these permanent and 

enforceable programs were quantified 

by the State in its calculation of the 

nonroad and onroad mobile sector 

emissions inventories. 

For nonroad mobile sources, it is 

standard and accepted practice for states 

to estimate emissions using an EPAapproved emissions model. Wisconsin 

ran EPA’s approved emissions model, 

National Mobile Inventory Model 

(NMIM), which estimates emissions 

while taking into account the effect of 

Federal nonroad mobile control 

programs and fleet turnover. The NMIM 

model showed that between 2005 and 

2008, total nonroad VOC and NOX

emissions in the Milwaukee-Racine area 

were reduced by approximately 17 

percent and 10 percent, respectively. 

The emissions estimates generated by 

NMIM quantify permanent and 

enforceable emissions reductions from 

nonroad mobile control programs; it is 

not necessary for the state to identify the 

portion of these reductions attributable 

to each individual control measure. 

For onroad mobile sources, it is 

standard and accepted practice for states 

to estimate emissions using an EPAapproved emissions model and daily 

vehicle miles traveled data. Wisconsin 

ran EPA’s approved onroad mobile 

emissions model, MOVES2010a, which 

takes into account the effect of Federal 

motor vehicle control programs and 

fleet turnover when calculating 

emissions estimates. Between 2005 and 

2008, onroad VOC and NOX emissions 

in the Milwaukee-Racine area were 

reduced by approximately 22 percent 

and 21 percent, respectively. The 

emissions estimates generated by the 

MOVES model quantify permanent and 

enforceable emissions reductions from 

all Federal motor vehicle control 

programs; it is not necessary for the 

state to identify the portion of these 

reductions attributable to each 

individual control measure. 

Permanent and enforceable emissions 

reductions in upwind areas also 

contributed to attainment of the 1997 8- 

hour ozone standard in the MilwaukeeRacine area. While Wisconsin did not 

quantify these upwind emissions 

reductions by state, overall emissions 

reductions estimates, by program, are 

available. Under the NOX SIP Call, 

ozone season NOX emissions were 

reduced by approximately 68,000 10 tons 

between 2005 and 2008. In addition, 

permanent and enforceable reductions 

in VOC and NOX emissions have 


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45258 Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 

occurred in upwind areas from Federal 

motor vehicle control programs. Overall 

emissions reductions from the 

implementation of these programs have 

been estimated as follows: Tier 2 

Emission Standards for Vehicles and 

Gasoline Sulfur Standards, 69–95 

percent reduction in NOX and 12–18 

percent reduction in VOCs, depending 

on vehicle class; the Heavy-Duty Diesel 

Engine Rule, 95 percent reduction in 

NOX; and the Nonroad Diesel Rule, 90 

percent reduction in NOX. Some of 

these emission reductions occurred by 

the attainment period and additional 

emission reductions will occur during 

the maintenance period as the fleet 

turns over. 

It is not necessary for every change in 

emissions between the nonattainment 

year and the attainment year to be 

permanent and enforceable. Rather, the 

improvement in air quality necessary for 

the area to attain the relevant NAAQS 

must be reasonably attributable to 

permanent and enforceable reductions 

in emissions. In summary, the State has 

identified a number of permanent and 

enforceable regulatory control measures 

which have been implemented in 

Wisconsin as well as in upwind areas 

and has documented significant 

emissions reductions resulting from 

these programs. These documented 

permanent and enforceable emissions 

reductions in combination with four 

three-year periods of monitoring data 

showing that the Milwaukee-Racine area 

is attaining the 1997 8-hour ozone 

NAAQS (2006–2008, 2007–2009, 2008– 

2010, and 2009–2011) represents an 

adequate demonstration that the 

improvement in air quality can 

reasonably be attributed to the 

significant reduction in emissions 

resulting from permanent and 

enforceable emissions control programs. 

Comment 4c: The commenter objects 

to EPA’s statement that emission 

reductions resulted from Wisconsin’s 

implementation of the Rate-Of-Progress 

(ROP) plan under the previous 1-hour 

ozone standard. The commenter claims 

that the ROP plan was implemented 

well before 2005, the base year of EPA’s 

emission comparison, and that 

implementation preceded the years the 

area violated the 1997 8-hour ozone 

standard. 

Response 4c: The commenter’s 

objection is unfounded. EPA mentioned 

Wisconsin’s ROP plan under the 1-hour 

ozone standard in the context of its 

discussion of Wisconsin’s stationary 

source NOX emission control rules. See 

77 FR 6737. Wisconsin estimated that 

the State’s stationary NOX emission 

control rules, which include emission 

controls applied at electric utilities and 

large industrial combustion sources, 

would produce NOX emission 

reductions between 2005 and 2007. 

Wisconsin estimated that these emission 

controls would achieve a 30 tpd 

reduction in NOX emissions by 2003 

and a 55 tpd reduction by 2007, i.e., 

approximately a 25 tpd additional 

reduction between 2003 and 2007. 

The fact that the State adopted the 

NOX control rules in the State’s ROP 

plan under the 1-hour ozone standard 

and that it began implementing the ROP 

plan prior to 2005 does not preclude 

NOX emission reductions from these 

NOX control rules from occurring after 

2005. The implementation of these rules 

was phased in over time, resulting in 

additional emission reductions for a 

number of years after the State’s 

adoption of the NOX emissions control 

regulations. 

Comment 4d: The commenter objects 

to EPA’s citing of EPA’s 2004 non-road 

diesel engine rule and 2000 and 2007 

heavy duty diesel rules without 

acknowledging that the emissions 

reduction estimates for these rules are 

national calculations of the possible 

emission impacts once the rules are 

fully implemented. The commenter 

argues that, since these rules rely on 

fleet turnover, they did not result in 

major emission reductions between 

2005 and 2008. The commenter believes 

that EPA erred in not making an 

emission reduction estimate for the 

local impacts of these rules during the 

period of 2005–2008. 

Response 4d: There is no basis for 

EPA to conclude that the Federal diesel 

emission controls cited by the 

commenter have had a smaller impact, 

on a percentage emission reduction 

basis, in the Milwaukee-Racine area 

than in other parts of the United States. 

EPA has cited national emission 

reduction estimates on a percentage 

basis for these controls, with the 

implication that similar emission 

reduction percentages have occurred in 

the Milwaukee-Racine area. The 

commenter has provided no 

independent emission reduction 

estimates localized to the MilwaukeeRacine area to refute EPA’s assumption 

that such emission reductions have 

occurred in the Milwaukee-Racine area. 

Lacking such estimates, EPA continues 

to believe that the Federal diesel 

emission control requirements have 

resulted in reduced NOX and VOC 

emissions in the Milwaukee-Racine 

area, resulting in lower peak ozone 

concentrations in this area. 

Furthermore, for nonroad mobile 

sources, it is a standard and accepted 

practice for states to estimate emissions 

using an EPA-approved emissions 

model. Wisconsin ran EPA’s approved 

emissions model, NMIM, which takes 

into account the affect of Federal 

nonroad mobile control programs and 

fleet turnover when calculating 

emissions estimates. Between 2005 and 

2008, total nonroad VOC and NOX

emissions in the Milwaukee-Racine area 

were reduced by approximately 17 

percent and 10 percent, respectively. 

For onroad mobile sources, it is 

standard and accepted practice for states 

to estimate emissions using an EPAapproved emissions model and daily 

vehicle miles traveled data. Wisconsin 

ran EPA’s approved onroad mobile 

emissions model, MOVES2010a, which 

takes into account the affect of Federal 

motor vehicle control programs and 

fleet turnover when calculating 

emissions estimates. Between 2005 and 

2008, onroad VOC and NOX emissions 

in the Milwaukee-Racine area were 

reduced by approximately 22 percent 

and 21 percent, respectively. 

Comment 4e: The commenter objects 

to EPA’s reference to the NOX SIP Call 

since EPA failed to mention that 

Wisconsin sources were not included in 

this regulation. The commenter asserts 

that the NOX emission reductions 

resulting for sources upwind of the 

Milwaukee-Racine area are not 

permanent and enforceable because the 

NOX SIP Call has been replaced and its 

replacement has been stayed by the 

United States Court of Appeals for the 

District of Columbia Circuit (D.C. 

Appeals Court). Finally, the commenter 

argues that the NOX SIP Call cannot be 

relied on to produce permanent and 

enforceable NOX emission reductions 

because the NOX SIP Call provides for 

the use of a cap-and-trade emission 

control program, which the D.C. 

Appeals Court has held cannot satisfy 

area-specific statutory emission control 

requirements. NRDC v. EPA, 571 F.3d 

1245, 1257 (D.C. Cir. 2009). 

Response 4e: The commenter’s 

assertion that EPA failed to mention that 

Wisconsin sources were not covered by 

the NOX SIP Call is incorrect. The 

proposal included a footnote explicitly 

noting that the State of Wisconsin was 

not included in the NOX SIP Call (77 FR 

6732 n.3). EPA also did not propose to 

rely on and is not relying on any 

reductions associated with the NOX SIP 

Call in the State of Wisconsin or in the 

Milwaukee-Racine ozone nonattainment 

area. With regard to NOX emission 

reductions in the Milwaukee-Racine 

ozone nonattainment area, we note here 

that Wisconsin has adopted and 

implemented NOX RACT rules for major 

NOX sources in the Milwaukee-Racine 

ozone nonattainment area. These NOX

RACT rules were approved into the 


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Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 45259 

11EPA guidance regarding the NOX SIP Call 

transition to CAIR can be found at http:// 

www.epa.gov/airmarkets/progsregs/cair/faq10.html. EPA guidance regarding the NOX SIP Call 

transition for the CSAPR can be found at http:// 

www.epa.gov/crossstaterule/faqs.html. 

Wisconsin SIP by the EPA on October 

19, 2010, 75 FR 64155. Wisconsin’s NOX

RACT rules became effective on August 

1, 2007, and required source compliance 

with the rules by May 1, 2009. Although 

sources had until May 1, 2009, to fully 

comply with the NOX RACT rules, EPA 

believes that some sources began 

implementation of the required NOX

emission controls well ahead of this 

implementation deadline, resulting in 

NOX emission reductions in the 

Milwaukee-Racine ozone nonattainment 

area by 2008. These NOX emission 

controls are permanent and enforceable. 

While the NOX SIP Call did not cover 

the State of Wisconsin, it did require the 

District of Columbia and 22 states to 

reduce emissions of NOX and, as EPA 

noted in the proposal, these reductions 

resulted in lower concentrations of 

transported ozone entering the 

Milwaukee-Racine area. 77 FR 6737. 

Because the area is impacted by the 

transport of ozone and its precursors, 

upwind reductions in NOX resulting 

from the NOX SIP Call are relevant to 

these redesignation actions. EPA 

disagrees with the commenter’s position 

that NOX emission reductions in areas 

upwind of the Milwaukee-Racine area 

and associated with the NOX SIP Call 

cannot be considered to be permanent 

and enforceable. The commenter’s first 

argument—that the NOX emission 

reductions are not permanent and 

enforceable because the NOX SIP Call 

has been replaced—is based on a 

misunderstanding of the relationship 

between CAIR and the NOX SIP Call. 

While the CAIR ozone-season trading 

program replaced the ozone-season NOX

trading program developed in the NOX

SIP Call (70 FR 25290), nothing in the 

CAIR relieved states of their NOX SIP 

Call obligations. In fact, in the preamble 

to CAIR, EPA emphasized that the states 

and certain units covered by the NOX

SIP Call but not CAIR must still satisfy 

the requirements of the NOX SIP Call. 

EPA provided guidance regarding how 

such states could meet these 

obligations.11 EPA did not suggest that 

states could disregard their NOX SIP 

Call obligations. (70 FR 25290). For 

states covered by the NOX SIP Call, the 

CAIR NOX ozone season program 

provides a way to continue to meet the 

NOX SIP Call obligations for electric 

generating units (EGUs) and large nonelectric generating units (nonEGUs). 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. 

In sum, the requirements of the NOX

SIP Call remain in force. They are 

permanent and enforceable as are state 

regulations developed to implement the 

requirements of the NOX SIP Call. 

Further, the fact that the CSAPR which 

was to replace CAIR was stayed by the 

D.C. Appeals Court is not relevant since 

neither CAIR nor the CSAPR replace the 

requirements of the NOX SIP Call, and 

EPA has determined that the area does 

not need any additional reductions from 

CAIR or the CSAPR to remain in 

attainment. 

EPA also disagrees with the 

commenter’s argument that the emission 

reductions in upwind areas associated 

with the NOX SIP Call cannot be 

considered permanent and enforceable 

because the NOX SIP Call provides for 

a trading program. There is no support 

for the commenter’s argument that EPA 

must ignore all emission reductions in 

upwind areas that were achieved by the 

NOX SIP Call simply because the 

mechanism used to achieve the 

emission reductions is an emissions 

trading program. As a general matter, 

trading programs establish mandatory 

caps on emissions and permanently 

reduce the total emissions allowed by 

sources subject to the programs. The 

emission caps and associated controls 

are enforced through the associated SIP 

rules or Federal Implementation Plans 

(FIPs). Any purchase of allowances and 

increase in emissions by a utility 

necessitates a corresponding sale of 

allowances and results in an emission 

reduction by another utility. Given the 

regional nature of ozone formation and 

transport, the emission reductions will 

have an air quality benefit that will 

compensate, at least in part, for the 

impact of any emission increase. 

In addition, the case cited by the 

commenter, NRDC v. EPA, 571 F.3d 

1245 (DC Cir. 2009), does not support 

the commenter’s position. The case 

addressed EPA’s determination that the 

CAA nonattainment area RACT 

requirement was satisfied by the NOX

SIP Call trading program. The court held 

that, because EPA had not demonstrated 

that the trading program would result in 

sufficient emission reductions within a 

nonattainment area, its determination 

that the program satisfied RACT was not 

supported. Id. 1256–58. The court 

explicitly noted that EPA might be able 

to reinstate the provision providing that 

compliance with the NOX SIP Call 

satisfies NOX RACT for EGUs for 

particular nonattainment areas if, upon 

conducting a technical analysis, it could 

demonstrate that the NOX SIP Call 

results in greater emissions reductions 

in a nonattainment area than would be 

achieved if RACT-level controls were 

installed in that area. Id. at 1258. In this 

case, EPA did not assume that the NOX

SIP Call led to any reductions within 

the nonattainment area. As such, the 

NRDC v. EPA decision is not relevant 

here. 

Comment 4f: The commenter asserts 

that neither EPA nor the State of 

Wisconsin have attempted to 

demonstrate the connection between the 

reported emission reductions and the 

observed ozone air quality improvement 

in the Milwaukee-Racine area. No 

modeling or other acceptable analyses, 

including temporal analyses of emission 

changes and ozone changes, have been 

done to demonstrate that the emission 

reductions are responsible for the 

observed air quality improvement. No 

correlation between emission changes 

and ozone changes has been established. 

Therefore, EPA has failed to prove that 

permanent and enforceable emission 

reductions have caused the observed 

ozone air quality improvement in the 

Milwaukee-Racine area. 

Response 4f: EPA’s conclusion that 

the ozone improvement in the 

Milwaukee-Racine area is due to the 

implementation of emission controls is 

fully supported by the facts and 

applicable legal criteria. As discussed in 

greater detail in response 4(b), EPA’s 

longstanding practice and policy 

provides for states to demonstrate 

permanent and enforceable emissions 

reductions by comparing nonattainment 

area emissions occurring during the 

nonattainment period with the 

emissions in the area during the 

attainment period. Therefore, selecting 

2008 as a representative attainment 

year, and comparing emissions for this 

year to those for a representative year 

during the nonattainment period, 2005, 

is an appropriate and long-established 

approach that demonstrates the 

occurrence of emission reductions in 

the area between the years of 

nonattainment and attainment. These 

emission reductions, therefore, can be 

seen to account for the observed air 

quality improvement. 

With respect to the commenter’s 

assertion that EPA has not conducted 

analyses to prove that emission 

reductions between 2005 and 2008 led 

to reduced ozone concentrations, as 

noted above, comparing emissions for a 

representative nonattainment year to 

emissions for a representative 

attainment year is such a demonstration. 

The CAA does not specifically require 

the use of modeling in making any such 

demonstration and it has not been the 

general practice to do so. The State has 


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45260 Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 

identified a number of permanent and 

enforceable regulatory control measures 

that have been implemented in 

Wisconsin as well as in upwind areas, 

and has documented significant 

emissions reductions resulting from 

these programs. These documented 

permanent and enforceable emissions 

reductions in combination with four 

three-year periods of monitoring data 

showing that the Milwaukee-Racine area 

is attaining the 1997 8-hour ozone 

NAAQS (2006–2008, 2007–2009, 2008– 

2010, and 2009–2011) represents an 

adequate demonstration that the 

improvement in air quality can 

reasonably be attributed to the 

significant reduction in emissions 

resulting from permanent and 

enforceable emissions control programs. 

Comment 5: The commenter contends 

that EPA has not conducted an adequate 

analysis of the effect the ozone 

redesignation will have on other 

NAAQS. The commenter claims that 

EPA has failed to comply with the 

requirements of section 110(l), which 

requires EPA to conduct such an 

analysis whenever it approves a revision 

in a state air quality plan. 

Response 5: Section 110(l) provides in 

part: ‘‘the Administrator shall not 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * *, or any other applicable 

requirement of this chapter.’’ As a 

general matter, EPA must and does 

consider section 110(l) requirements for 

every SIP revision, including whether 

the revision would ‘‘interfere with’’ any 

applicable requirement. See, e.g., 70 FR 

53, 57 (January 3, 2005); 70 FR 17029, 

17033 (April 4, 2005); 70 FR 28429, 

28431 (May 18, 2005); and 70 FR 58119, 

58134 (October 5, 2005). The Wisconsin 

maintenance plan and redesignation for 

the 1997 8-hour ozone standard do not 

revise or remove any existing emissions 

limit for any NAAQS, nor do they alter 

any existing control requirements. On 

that basis, EPA concludes that the 

redesignation will not interfere with 

attainment or maintenance of any air 

quality standards. The commenter does 

not provide any information to 

demonstrate that approval of this 

redesignation would have any impact 

on the area’s ability to comply with the 

any NAAQS. In fact, the maintenance 

plan provided with the State’s 

submission demonstrates a decline in 

ozone precursor emissions over the 

timeframe of the initial maintenance 

period. As a result, the redesignation 

will not relax any existing rules or 

limits, nor will the redesignation alter 

the status quo air quality. The 

commenter has not provided any reason 

that the redesignation might interfere 

with attainment of any standard or with 

satisfaction of any other requirement of 

the CAA, and EPA finds no basis under 

section 110(l) for EPA to disapprove the 

SIP revision. 

III. What actions is EPA taking? 

EPA is approving a request from the 

State of Wisconsin to redesignate the 

Milwaukee-Racine area to attainment of 

the 1997 8-hour ozone standard. EPA is 

also taking several other related actions. 

EPA is approving, as a revision to the 

Wisconsin SIP, the State’s plan for 

maintaining the 1997 8-hour ozone 

standard through 2022 in the area. EPA 

is approving the 2005 emissions 

inventories as meeting the 

comprehensive emissions inventory 

requirement of the CAA for the 

Milwaukee-Racine and Sheboygan 

areas. Finally, EPA finds adequate and 

is approving the State’s 2015 and 2022 

MVEBs for the Milwaukee-Racine area. 

In accordance with 5 U.S.C. 553(d), 

EPA finds there is good cause for these 

actions to become effective immediately 

upon publication. This is because a 

delayed effective date is unnecessary 

due to the nature of a redesignation to 

attainment, which relieves the area from 

certain CAA requirements that would 

otherwise apply to it. The immediate 

effective date for this action is 

authorized under both 5 U.S.C. 

553(d)(1), which provides that 

rulemaking actions may become 

effective less than 30 days after 

publication if the rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction,’’ and section 553(d)(3), 

which allows an effective date less than 

30 days after publication ‘‘as otherwise 

provided by the agency for good cause 

found and published with the rule.’’ 

The purpose of the 30-day waiting 

period prescribed in section 553(d) is to 

give affected parties a reasonable time to 

adjust their behavior and prepare before 

the final rule takes effect. Today’s rule, 

however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule relieves the state of 

planning requirements for this 8-hour 

ozone nonattainment area. For these 

reasons, EPA finds good cause under 5 

U.S.C. 553(d)(3) for these actions to 

become effective on the date of 

publication of these actions. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

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

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. These actions do not impose 

additional requirements beyond those 

imposed by state law and the CAA. For 

that reason, these actions: 

• Are not a ‘‘significant regulatory 

action’’ 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); 

• Are 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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 45261 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because 

redesignation is an action that affects 

the status of a geographical area and 

does not impose any new regulatory 

requirements on tribes, impact any 

existing sources of air pollution on 

tribal lands, nor impair the maintenance 

of ozone national ambient air quality 

standards in tribal lands. However, 

because there are tribal lands located in 

Milwaukee County, we provided the 

affected tribe with the opportunity to 

consult with EPA on the redesignation. 

The affected tribe raised no concerns 

with the redesignation. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by October 1, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Volatile 

organic compounds. 

40 CFR Part 81 

Air pollution control, Environmental 

protection, National parks, Wilderness 

areas. 

Dated: July 11, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

Therefore, 40 CFR parts 52 and 81 are 

amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.2585 is amended by 

adding paragraphs (z) and (aa) to read as 

follows: 

§ 52.2585 Control strategy: Ozone. 

* * * * * 

(z) Approval—Wisconsin submitted 

2005 VOC and NOX emissions 

inventories for the Milwaukee-Racine 

and Sheboygan areas on September 11, 

2009, and supplemented the submittal 

on November 16, 2011. Wisconsin’s 

2005 inventories satisfy the emissions 

inventory requirements of section 

182(a)(1) of the Clean Air Act for the 

Milwaukee-Racine and Sheboygan areas 

under the 1997 8-hour ozone standard. 

(aa) Approval—On September 11, 

2009, Wisconsin submitted a request to 

redesignate the Milwaukee-Racine area 

to attainment of the 1997 8-hour ozone 

standard. The state supplemented this 

submittal on November 16, 2011. As 

part of the redesignation request, the 

State submitted a maintenance plan as 

required by section 175A of the Clean 

Air Act. Elements of the section 175 

maintenance plan include a contingency 

plan and an obligation to submit a 

subsequent maintenance plan revision 

in 8 years as required by the Clean Air 

Act. The ozone maintenance plan also 

establishes 2015 and 2022 Motor 

Vehicle Emission Budgets (MVEBs) for 

the area. The 2015 MVEBs for the 

Milwaukee-Racine area is 21.08 tpd for 

VOC and 51.22 tpd for NOX. The 2022 

MVEBs for the Milwaukee-Racine area 

is 15.98 tpd for VOC and 31.91 tpd for 

NOX. 

PART 81—[AMENDED] 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. Section 81.350 is amended by 

revising the entries for MilwaukeeRacine, WI in the table entitled 

Wisconsin—1997 8-Hour Ozone 

NAAQS (Primary and Secondary) to 

read as follows: 

§ 81.350 Wisconsin. 

* * * * * 

WISCONSIN—1997 8-HOUR OZONE NAAQS (PRIMARY AND SECONDARY) 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Milwaukee-Racine, WI: 

Kenosha County ......................................... 7/31/12 Attainment.

Milwaukee County.

Ozaukee County.

Racine County.

Washington County.

Waukesha County.

*******

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 


emcdonald on DSK67QTVN1PROD with RULES
45262 Federal Register / Vol. 77, No. 147 / Tuesday, July 31, 2012 / Rules and Regulations 

* * * * * 

[FR Doc. 2012–18091 Filed 7–30–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2012–0003] 

Final Flood Elevation Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: Base (1% annual-chance) 

Flood Elevations (BFEs) and modified 

BFEs are made final for the 

communities listed below. The BFEs 

and modified BFEs are the basis for the 

floodplain management measures that 

each community is required either to 

adopt or to show evidence of being 

already in effect in order to qualify or 

remain qualified for participation in the 

National Flood Insurance Program 

(NFIP). 

DATES: The date of issuance of the Flood 

Insurance Rate Map (FIRM) showing 

BFEs and modified BFEs for each 

community. This date may be obtained 

by contacting the office where the maps 

are available for inspection as indicated 

in the table below. 

ADDRESSES: The final BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: Luis 

Rodriguez, Chief, Engineering 

Management Branch, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street SW., Washington, DC 20472, 

(202) 646–4064, or (email) Luis.

Rodriguez3@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) makes the final determinations 

listed below for the modified BFEs for 

each community listed. These modified 

elevations have been published in 

newspapers of local circulation and 

ninety (90) days have elapsed since that 

publication. The Deputy Associate 

Administrator for Mitigation has 

resolved any appeals resulting from this 

notification. 

This final rule is issued in accordance 

with section 110 of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4104, 

and 44 CFR part 67. FEMA has 

developed criteria for floodplain 

management in floodprone areas in 

accordance with 44 CFR part 60. 

Interested lessees and owners of real 

property are encouraged to review the 

proof Flood Insurance Study and FIRM 

available at the address cited below for 

each community. The BFEs and 

modified BFEs are made final in the 

communities listed below. Elevations at 

selected locations in each community 

are shown. 

National Environmental Policy Act. 

This final rule is categorically excluded 

from the requirements of 44 CFR part 

10, Environmental Consideration. An 

environmental impact assessment has 

not been prepared. 

Regulatory Flexibility Act. As flood 

elevation determinations are not within 

the scope of the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, a regulatory 

flexibility analysis is not required. 

Regulatory Classification. This final 

rule is not a significant regulatory action 

under the criteria of section 3(f) of 

Executive Order 12866 of September 30, 

1993, Regulatory Planning and Review, 

58 FR 51735. 

Executive Order 13132, Federalism. 

This final rule involves no policies that 

have federalism implications under 

Executive Order 13132. 

Executive Order 12988, Civil Justice 

Reform. This final rule meets the 

applicable standards of Executive Order 

12988. 

List of Subjects in 44 CFR Part 67 

Administrative practice and 

procedure, Flood insurance, Reporting 

and recordkeeping requirements. 

Accordingly, 44 CFR part 67 is 

amended as follows: 

PART 67—[AMENDED] 

■ 1. The authority citation for part 67 

continues to read as follows: 

Authority: 42 U.S.C. 4001 et seq.; 

Reorganization Plan No. 3 of 1978, 3 CFR, 

1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 

3 CFR, 1979 Comp., p. 376. 

§ 67.11 [Amended] 

■ 2. The tables published under the 

authority of § 67.11 are amended as 

follows: 

State City/town/county Source of flooding Location 

* Elevation in feet 

(NGVD) 

+ Elevation in feet 

(NAVD) 

# Depth in feet 

above ground 

∧Elevation in meters (MSL) 

Modified 

Unincorporated Areas of Solano County, California 

Docket No.: FEMA–B–1200 

California ..... Unincorporated Areas of 

Solano County.

Sweany Creek ................. Approximately 375 feet upstream of the McCune 

Creek confluence.

+64 

Approximately 930 feet upstream of Timm Road ..... +149 

* National Geodetic Vertical Datum. 

+ North American Vertical Datum. 

# Depth in feet above ground. 

∧ Mean Sea Level, rounded to the nearest 0.1 meter. 

ADDRESSES 

Unincorporated Areas of Solano County 

Maps are available for inspection at the Solano County Public Works Department, 675 Texas Street, Suite 5500, Fairfield, CA 94533. 


emcdonald on DSK67QTVN1PROD with RULES