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BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIROMENTAL PROTECTION AGENCY 

In re Approval and Promulgation of Air Quality 

Implementation Plans; Infrastructure SIP 

Requirements for 1997 8-Hour Ozone and PM2.5 

National Ambient Air Quality Standards. 

Comments of the Midwest Environmental Defense Center 

 These comments are provided by Midwest Environmental Defense Center on behalf of its 

members. EPA’s proposed approval of the “infrastructure SIP” for the states in Region 5 

(Wisconsin, Michigan, Minnesota, Illinois, Indiana, and Ohio) is deficient for the reasons set 

forth below. Generally, EPA acknowledges certain shared problems with the SIPs but proposes 

to address those problems through other rulemakings. To the extent EPA does so, it must use 

section 110(k)(4) of the Act, 42 U.S.C. § 7410(k)(4), which requires that the state adopt the 

missing (or correct the deficient) provision by a date certain (no later than one year), and which 

constitutes an automatic disapproval if the state fails to meet the deadline. EPA is not authorized 

to punt is current infrastructure determination to speculations about future rulemakings to satisfy 

the infrastructure requirements in section 110. Moreover, EPA provides no basis (and we are not 

aware of any) for its purported decision not to “act[] on any of the requirements of” certain 

sections of 110(a)—such as the inter-state contribution provision in 110(a)(2)(D)(i). Similarly, 

we are not aware of any (and EPA has not offered any) basis for not “approv[ing] or 

disapprov[ing] any existing state provisions with regard to excess emissions during SSM of 

operations at facilities.” EPA has an obligation (under the CAA and court order) to approve or 

disapprove the SIPs’ infrastructure requirement components. To the extent illegal SSM 

provisions (and other illegal provisions, such as “director discretion”) exist, EPA must 

disapprove. 

 

EPA-R05-OAR-2007-1179 

FRL-9299-8 

May 31, 2011 
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A. Wisconsin 

1. Wisconsin DNR is Not Implementing Its SIP Sufficiently To Comply With 40 C.F.R. 

§ 51.160 and CAA § 110(a). 

Wisconsin DNR must have and implement a SIP that prevents sources from constructing or 

modifying and causing emissions that either violate or prevent the maintenance of NAAQS. 

However, Wisconsin DNR is failing to do so by effectively exempting sources from the 

requirements to demonstrate (through modeling) that its emissions will not cause NAAQS 

violations or prevent NAAQS maintenance. See e.g., 42 U.S.C. § 740(a)(2); 40 C.F.R. § 

51.160(a), (f). For example, DNR’s “guidance”1

 on modeling notes that sources can avoid 

modeling in nonattainment areas if they obtain offsets or model below the SIL—despite no SIP 

provision for Wisconsin allowing such exceptions to Wis. Stat. § 285.63(1). Wisconsin DNR’s 

“guidance” also exempts all operating permits for sources in nonattainment areas from the clean 

requirement to demonstrate compliance with (and non-prevention of maintenance of) NAAQS as 

a condition of permit approval for all operating permits for all sources (not merely those in 

attainment areas) in Wis. Stat. § 285.63(1). 

Furthermore, Wisconsin DNR has not been modeling compliance with PM2.5 for registration 

permits. For example, an Administrative Law Judge recently found that Wisconsin DNR had 

illegally exempted registration permit sources from modeling compliance with PM2.5—contrary 

to Wis. Stat. § 285.63 (See In re Waukesha Iron and Metal)—and, yet, Wisconsin DNR 

continues to ignore the requirement in the Wisconsin SIP that every permit applicant must 

demonstrate compliance with NAAQS before any permit can be issued. 

Moreover, Wisconsin DNR does not model ozone impacts (i.e., ozone NAAQS compliance), 

despite the clear applicability of the SIP requirement to demonstrate compliance with all 

NAAQS as a condition of permit issuance in Wis. Stat. § 285.63(1). To our knowledge, DNR 

has never analyzed the impacts of facilities on ozone during permitting—as it is required to do 

pursuant to 42 U.S.C. § 7410(a), 40 C.F.R. §§ 51.160, 51.166 and Wis. Stat. § 285.63(1). In 

fact, DNR’s guidance states explicitly that it does not model for ozone impacts. See WDNR, 

Dispersion Modeling Guidelines (2009), available at 

http://dnr.wi.gov/air/pdf/wdnrguidance_v71final.pdf . 

2. Illegal Startup and Shutdown Provisions 

Wisconsin’s SIP contains a startup and shutdown exemption (albeit, one much narrower than 

Wisconsin DNR has sometimes applied). See In re We Energies Oak Creek Power Plant, Order 

                                                           

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  http://dnr.wi.gov/air/pdf/ModelingReqsAllPollutants_0411memo.pdf  
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Responding to Petition at 22 (June 12, 2009), available at 

http://www.epa.gov/region7/air/title5/petitiondb/petitions/oak_creek_decision2007.pdf. 

However, EPA has since made clear that such startup and shutdown exemptions are not 

approvable and conflict with Clean Air Act section 110 (among others). Therefore, until the 

illegal startup and shutdown exemption is removed from the Wisconsin SIP, the Wisconsin SIP 

does not meet the requirements of section 110. 

EPA has long found that the Clean Air Act provides that all excess emissions are violations of 

the applicable standards. In Michigan Dep’t of Env’tl Quality v. Browner, the Sixth Circuit 

related the history of this policy: “Since 1977, the EPA has interpreted all excess emissions as 

‘violations’ of the applicable standards for which ‘notices of violations’ could, but not 

necessarily would, issue.” 230 F.3d 181, 183 (6th Cir. 2000) (citing 42 Fed. Reg. 21472 (April 

27, 1977)). The Sixth Circuit continued: 

The EPA elaborated on this approach in 1982 and 1983, when Kathleen Bennett, then EPA 

Assistant Administrator for Air, Noise and Radiation, issued two memoranda explaining the 

agency's policy on excess emissions. Together, the memoranda explain that excess emissions 

must be deemed violations because “any emissions above the allowable [standard] may cause or 

contribute to violations of the national ambient air quality standards.

Id. at 183-84 (quoting 9/28/1982 Mem. from Kathleen M. Bennett to Regional Administrators). 

See also 9/28/1982 Mem. from Kathleen M. Bennett to Regional Administrators (“The rationale 

for establishing these emissions as violations, as opposed to granting automatic exemptions, is 

that SIPs are ambient-based standards and any emissions above the allowable [limit] may cause 

or contribute to violations of the national ambient air quality standards. Without clear definition 

and limitations, these automatic exemption provisions could effectively shield excess emissions 

arising from poor operation and maintenance or design, thus precluding attainment.”); 2/15/1983 

Mem. from Kathleen M. Bennett to Regional Administrators (“Automatic exemptions might 

aggravate air quality so as not to provide for attainment of ambient air quality standards.”); 

9/20/1999 Mem. from Steven A. Herman to Regional Administrators. In other words, any 

emissions above allowable limits may cause or contribute to violations and the infrastructure SIP 

is not sufficient to protect maintenance of the NAAQS until the illegal startup and shutdown 

provisions are removed from the Wisconsin SIP. 

3. The Wisconsin SIP Contains Illegal “Directors Discretion” Provisions 

EPA has long interpreted section 110 as prohibiting “director’s discretion provisions,” which 

allow a representative of the agency (here, Wisconsin DNR) to approve alternatives to the basic 

provisions of the State implementation plan’s otherwise-applicable regulations outside of the 

SIP-approval process. Wisconsin has variations of such unlawful provisions at Wis. Admin. 

Code § NR 436.03(2), 436.04, 436.06. (Note that unlike the other variance and director’s 

discretion provisions, Wisconsin regulations include a limited variance provision for RACT 

limits that appropriately requires EPA SIP-approval for any variance. See Wis. Admin. Code § 

NR 436.05(5).) EPA has historically, and correctly, determined that it cannot approval SIPs as 

being adequate when they contain such director’s discretion provisions that have the potential to 
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change the stringency of the SIP requirements, including variances, test methods, control 

requirements, exemptions, etc. 

4. NOx as an Ozone Precursor 

Contrary to EPA’s Federal Register notice, 76 Fed. Reg. at 23760-61, Wisconsin’s SIP does not 

contain the requirement that Nitrogen Oxides (NOx) be regulated in the Non-attainment New 

Source Review and Prevention of Significant Deterioration program as an ozone precursor. In 

Wisconsin’s SIP, like many that EPA has recently found deficient, 75 Fed. Reg. 78300, only 

Volatile Organic Compounds (VOCs) are regulated as ozone. This means that a significant net 

emissions increase of NOx is not considered an increase in ozone. See e.g., Wis. Admin. Code 

§§ NR 405.02(27)(a)6. (only a 40 ton increase on VOC is considered significant for Ozone), NR 

408.02(32)(a)2. (same). However, under the Act an increase in NOx must also be an increase in 

ozone. See 40 C.F.R. § 51.166(b)(23)(i) (providing that a 40 ton increase in VOC or NOx is 

significant for ozone). Additionally, a major source of NOx is a major ozone source. 40 C.F.R. § 

51.165(a)(2); 51.166(b)(1)(ii), 52.21(b)(1)(ii). And, NOx emissions require ambient impact 

analysis for ozone. 40 C.F.R. §§ 51.166(i)(5)(i) n.1, 52.21(i)(5)(i) n.1. 

5. Fuel Changes As a Modification 

NSR program requires that states adopt definitions identical to, or more stringent than, EPA’s 

definitions. 40 C.F.R. §§ 51.165(a)(1), 51.166(b). The federal regulations define “major 

modification” by providing only a limited exemption from the definition (and therefore from 

NSR requirements) for certain fuel changes, but provides that fuel changes are “major 

modifications” and require compliance with the NSR program when such changes “would be 

prohibited under any federally enforceable permit condition which was established after January 

6, 1975 pursuant to 40 CFR 52.21 or 40 CFR subpart I or 40 CFR 51.166.” 40 C.F.R. §§ 

51.165(a)(1)(v)(C)(5); 51.166(b)(2)(iii)(e), 52.21(b)(2)(iii)(d)(1). EPA admits that the Wisconsin 

SIP omits this definition. See 73 Fed. Reg. at 76,566 (stating that the Wisconsin major 

modification definition “failed to incorporate language that would include sources with 

construction permits issued ... either directly by EPA or by WDNR under a delegated agreement 

in accordance with 40 CFR 52.21.”); see also Wis. Admin. Code §§ NR 405.02(21) (omitting 

this provision), NR 408.02(20) (same for nonattainment NSR program). Indeed, 

EPA has specifically apprised WDNR via letter of the need for Wisconsin to correct this 

deficiency: 

[W]e did agree with a portion of one of the comments raised by the 

Sierra Club concerning the differences in citations used with 

respect to the fuel use prohibition that is part of the definition of 

“major modification.” ... 

We, therefore, request that WDNR [change] NR 405.02(21)(b)5... 

We also request that WDNR revise the language under the 

definition of “major modification” at NR 408.02(20)(e)(5) to be 

analogous to the [change requested of NR 405.02(21)(b)(5)]. 

Letter from Cheryl L. Newton, EPA Region 5, to John Melby, Jr., WDNR (June 17, 
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2009). 

B. Indiana 

1. Enforcement 

According to many press accounts, Indiana is no longer taking enforcement of its air pollution 

regulations seriously. See 

http://www.journalgazette.net/article/20100328/LOCAL10/303289908 (Published March 28, 

2010); http://www.journalgazette.net/apps/pbcs.dll/article?AID=/20081219/EDIT05/812190391; 

http://www.indems.org/index.php/news/entry/idem_comes_under_attack_gary_post_tribune/ 

According to those reports, there are hundreds of documented violations which the state has 

shown no ability or no interest in addressing. Moreover, as USEPA indicated in a letter to 

IDEM over two years ago, EPA already has concerns about IDEM’s elimination of the Office of 

Enforcement, revising the Compliance and Enforcement Policy (CERP), and its elimination of 

funding for local air authorities. IDEM’s current enforcement policy requires that enforcement 

staff show that violations caused specific and actual harm to human health or the environment to 

be considered important enough for enforcement. This heighted “harm” standard is contrary to 

the Clean Air Act because pollution that harms health and the environment is often caused by 

disparate emitters who, collectively, cause health threats—and proof that one violation is the sole 

cause of health problems is extremely difficult. Moreover, all enforcement decisions are now 

routed through the politically-appointed Commissioner, who decides whether to bring an 

enforcement action. See also 

http://www.in.gov/idem/files/OAQ_Compliance_and_Enforcement_Lean_Rollout.ppt

2. Illegal Startup/Shutdown/Malfunction Exemptions 

Indiana, like Wisconsin discussed above, provides certain exemptions that are unlawful under 

EPA’s controlling interpretations. See e.g., 326 IAC §§ 1-6-4, 5-1-3. 

C. Illinois 

1. “Automatic Stay” Provisions and Multi-year Appeals Undermine Enforcement of 

SIP Requirements. 

Illinois’ ability to enforce SIP requirements is undermined by a convoluted interpretation of state 

law and a history of lengthy (e.g. five years) appeal process. In interpretations of state law by 

the Illinois Pollution Control Board, Illinois has determined that a permittee who appeals its 

permit can effectively stay any provisions it appeals. See e.g., Dynegy Midwest Generation Inc. 

v. IEPA, PCB 2009-009, Slip Op. (Aug. 21, 2008) (staying contested permit terms beginning in 

2008 and continuing through present); Midwest Generation LLC, Waukegan Generating Station 

v. IEPA, PCB 2008-20 (Sept. 20, 2007) (staying permit provisions beginning in 2007 and 

continuing to present); United States Steel Corp. v. IEPA, PCB 10-23, Slip. Op. (Nov. 19, 2009) 

(staying effectiveness of permit that contains requirements to, inter alia, ensure compliance with 
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limits necessary to meet NAAQS)2; Midwest Generation LLC, Fisk Generating Station v. IEPA, 

PCB 2008-18 (Sept. 20, 2007) (same); Midwest Generation, LLC, Crawford Generating Station 

v. IEPA, PCB 06-56, slip op. at 7 (Feb. 16, 2006); Midwest Generation, LLC, Fisk Generating 

Station v. IEPA, PCB 06-57, slip op. at 7 (Feb. 16, 2006); Midwest Generation, LLC, Joliet 

Generating Station v. IEPA, PCB 06-58, slip op. at 7 (Feb. 16, 2006); Midwest Generation, LLC, 

Powerton Generating Station v. IEPA, PCB 06-59, slip op. at 7 (Feb. 16, 2006); Midwest 

Generation, LLC, Will County Generating Station v. IEPA, PCB 06-60, slip op. at 7 (Feb. 16, 

2006). Not only is this inconsistent with EPA regulations, which provide for no such “stay,” see 

e.g., 40 C.F.R. pt. 70 (requiring enforceable limits and providing no automatic or discretionary 

“stay”), §§ 51.160(a) (requiring enforceable requirements), 51.165 (same and further providing 

no automatic stays), but the extremely long time that permit challenges have been pending before 

the Pollution Control Board creates a de facto automatic “variance” from challenged SIP (and 

federally-enforceable SIP preconstruction permit requirements) that, in turn, can interfere with 

maintenance of the NAAQS. 

2. Illegal Startup and Shutdown Exemptions 

Like Wisconsin, addressed above, Illinois has illegal exemptions contrary to established EPA 

interpretations of the Clean Air Act. Specifically, 35 Ill. Admin. Code §§ 212.123 and 212.124 

contain illegal exemptions for periods of startup, shutdown, malfunction, and breakdown. These 

must be removed, or EPA must set a deadline for them to be removed (triggering an automatic 

SIP disapproval if Illinois does not comply) pursuant to section 110(k)(4). 

3. Illegal “Director’s Discretion” Provisions 

Like Wisconsin, addressed above, Illinois has illegal provisions allowing the IEPA director to 

allow violations of limits under certain circumstances. See 35 Ill. Admin. Code § 201.262- .265. 

                                                           

2 See http://www.epa.gov/region7/air/title5/petitiondb/petitions/uss_response2009.pdf