[Federal Register Volume 83, Number 159 (Thursday, August 16, 2018)]
[Proposed Rules]
[Pages 40715-40723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17590]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2017-0212; FRL-9982-29--Region 5]


Air Plan Approval; Wisconsin; Reasonable Further Progress Plan 
and Other Plan Elements for the Moderate Nonattainment Chicago Area for 
the 2008 Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the Wisconsin State Implementation Plan (SIP) to 
meet the base year emissions inventory, reasonable further progress 
(RFP), RFP contingency measure, nitrogen oxides (NO<INF>X</INF>) 
reasonably available control technology (RACT), and motor vehicle 
inspection and maintenance (I/M) requirements of the Clean Air Act 
(CAA) for the Wisconsin portion of the Chicago-Naperville, Illinois-
Indiana-Wisconsin nonattainment area (Chicago area) for the 2008 ozone 
National Ambient Air Quality Standards (NAAQS or standards). EPA is 
also proposing to approve the 2017 and 2018 transportation conformity 
motor vehicle emissions budgets (MVEBs) for the Wisconsin portion of 
the Chicago area for the 2008 ozone NAAQS. EPA is proposing to approve 
this SIP revision pursuant to section 110 and part D of the CAA and 
EPA's regulations because it satisfies the emission inventory, RFP, RFP 
contingency measure, NO<INF>X</INF> RACT, I/M, and transportation 
conformity requirements for the Wisconsin portion of the Chicago area, 
which is classified as moderate nonattainment for the 2008 ozone NAAQS.

DATES: Comments must be received on or before September 17, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2017-0212, at http://www.regulations.gov, or via email to 
<a href="/cdn-cgi/l/email-protection#85c4e7f0f7e4ebeaabc1eaf0e2e9e4f6c5e0f5e4abe2eaf3"><span class="__cf_email__" data-cfemail="b0f1d2c5c2d1dedf9ef4dfc5d7dcd1c3f0d5c0d19ed7dfc6">[email protected]</span></a>. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jenny Liljegren, Physical Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard,

[[Page 40716]]

Chicago, Illinois 60604, (312) 886-6832, <a href="/cdn-cgi/l/email-protection#eea28782848b899c8b80c0a48b808087888b9cae8b9e8fc0898198"><span class="__cf_email__" data-cfemail="78341114121d1f0a1d1656321d1616111e1d0a381d0819561f170e">[email protected]</span></a>.

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 action?
II. EPA's Evaluation of Wisconsin's SIP Submission
III. What action is EPA proposing?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

A. Background on the 2008 Ozone NAAQS

    On March 27, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm).\1\ Promulgation of a revised NAAQS 
triggers a requirement for EPA to designate areas of the country as 
nonattainment, attainment, or unclassifiable for the standards. For the 
ozone NAAQS, this also involves classifying any nonattainment areas at 
the time of designation.\2\ Ozone nonattainment areas are classified 
based on the severity of their ozone levels (as determined based on the 
area's ``design value,'' which represents air quality in the area for 
the most recent 3 years). The classifications for ozone nonattainment 
areas are marginal, moderate, serious, severe, and extreme.\3\
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    \1\ 73 FR 16436.
    \2\ CAA sections 107(d)(1) and 181(a)(1).
    \3\ CAA section 181(a)(1).
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    Areas that EPA designates nonattainment for the ozone NAAQS are 
subject to certain requirements, including the general nonattainment 
area planning requirements of CAA section 172 and the ozone-specific 
nonattainment planning requirements of CAA section 182. Ozone 
nonattainment areas in the lower classification levels have fewer and/
or less stringent mandatory air quality planning and control 
requirements than those in higher classifications. For marginal areas, 
a state is required to submit a baseline emissions inventory, adopt 
provisions into the SIP requiring emissions statements from stationary 
sources in the area, and implement a nonattainment new source review 
(NSR) program for the relevant ozone NAAQS.\4\ For moderate areas, a 
state needs to comply with the marginal area requirements, plus 
additional moderate area requirements, including the requirement to 
submit a modeled demonstration that the area will attain the NAAQS as 
expeditiously as practicable but no later than 6 years after 
designation, the requirement to submit an RFP plan, the requirement to 
adopt and implement certain emissions controls, such as RACT and I/M, 
and the requirement for greater emissions offsets for new or modified 
major stationary sources under the state's nonattainment NSR 
program.\5\
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    \4\ CAA section 182(a).
    \5\ CAA section 182(b).
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B. Background on the Chicago 2008 Ozone Nonattainment Area

    On June 11, 2012,\6\ EPA designated the Chicago area as a marginal 
nonattainment area for the 2008 ozone NAAQS. The Chicago area includes 
Cook, DuPage, Kane, Lake, McHenry, and Will Counties and part of Grundy 
and Kendall Counties in Illinois; Lake and Porter Counties in Indiana; 
and the eastern portion of Kenosha County in Wisconsin. On May 4, 
2016,\7\ pursuant to section 181(b)(2) of the CAA, EPA determined that 
the Chicago area failed to attain the 2008 ozone NAAQS by the July 20, 
2015, marginal area attainment deadline and thus reclassified the area 
from marginal to moderate nonattainment. In that action, EPA 
established January 1, 2017, as the due date for all moderate area 
nonattainment plan SIP requirements applicable to newly reclassified 
areas.
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    \6\ 77 FR 34221, effective July 20, 2012.
    \7\ 81 FR 26697.
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II. EPA's Evaluation of Wisconsin's SIP Submission

    Wisconsin submitted a SIP revision on April 17, 2017, and 
supplemental information on January 23, 2018, to address the moderate 
nonattainment area requirements for the Wisconsin portion of the 
Chicago area for the 2008 ozone NAAQS. The submission contained several 
nonattainment plan elements, including a revised 2011 base year 
emissions inventory for the two ozone-forming precursor pollutants, 
volatile organic compounds (VOC) and NO<INF>X</INF>, a 15% RFP plan, a 
3% RFP contingency measure plan, 2017 and 2018 VOC and NO<INF>X</INF> 
MVEBs, and an enhanced I/M program certification. The submission also 
included an attainment demonstration, a nonattainment NSR 
certification, and a VOC RACT certification, which will be addressed in 
a separate action(s).

A. Revised 2011 Base Year Emissions Inventory

    CAA sections 172(c)(3) and 182(a)(1), 42 U.S.C. 7502(c)(3) and 
7511a(a)(1), require states to develop and submit, as SIP revisions, 
comprehensive, accurate, and complete emissions inventories for all 
areas designated as nonattainment for the ozone NAAQS. An emissions 
inventory for ozone is an estimation of actual emissions of VOC and 
NO<INF>X</INF> from all sources located in the relevant designated 
nonattainment area. For the 2008 ozone NAAQS, EPA has recommended that 
states use 2011 as a base year for the emissions estimates.\8\ EPA 
approved on March 7, 2016,\9\ the 2011 base year emissions inventory, 
which Wisconsin submitted on November 14, 2014, for the Wisconsin 
portion of the Chicago area. In its April 17, 2017, submission, 
supplemented on January 23, 2018, Wisconsin included a revised 2011 
base year emissions inventory submission. Relative to its original 
inventory, Wisconsin's revised 2011 base year emissions inventory 
modifies the emissions estimates for the point, on-road mobile, and 
non-road mobile sector, with emissions estimates for the area source 
sector remaining unchanged.
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    \8\ 78 FR 34178 at 34190.
    \9\ 81 FR 11673.
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    The methodology differences between Wisconsin's modified inventory 
and original inventory are summarized in Table 1 and the emissions 
difference are shown in Table 2. Relative to the original inventory, 
the modified inventory includes a more conservative (worst-case) 
emissions estimate from the one electric generating unit (EGU) in the 
Wisconsin portion of the area. Wisconsin estimated the modified 
inventory on-road emissions using the Motor Vehicle Emissions Simulator 
(MOVES) model version 2014a, whereas it estimated the original 
inventory on-road mobile sector emissions with an older version of the 
model--MOVES version 2010b. Finally, Wisconsin estimated the modified 
inventory non-road mobile sector ``MAR'' emissions, which include 
commercial marine, aircraft, and rail locomotive, using EPA's 2014 
National Emissions Inventory (NEI) version 2 and it estimated the 
``non-MAR'' emissions, which are the non-road mobile emissions sources 
excluding commercial marine, aircraft, and rail locomotive, using MOVES 
2014a, whereas the original inventory relied on the older NEI version 1 
and National Mobile Inventory Model (NMIM), respectively. Because the 
modifications to the original EPA-approved inventory are based on 
updated resources and information as summarized above, EPA finds the 
updated inventory approvable and is proposing to approve the revised 
2011 base year emissions inventory as a revision to the Wisconsin SIP.

[[Page 40717]]



 Table 1--Methodology Differences Between Wisconsin's Modified Inventory
             and Wisconsin's Original EPA-Approved Inventory
------------------------------------------------------------------------
         Sector             Original inventory      Modified inventory
------------------------------------------------------------------------
Point..................  EGUs & non-EGUs: WI AEI  EGUs: CAMD for a
                          for an average day in    maximum day; non-EGU:
                          the third quarter.       WI AEI for an average
                                                   day in the year.
Area...................  NEI v2.................  NEI v2.
Onroad.................  MOVES 2010b (Min/Max     MOVES 2014a (Min/Max
                          Temps: 70/94 [deg]F).    Temps: 70/94 [deg]F).
Nonroad................  air & rail: NEI v1;      MAR: NEI v2; non-MAR:
                          com.mar.: LADCO/NEI      MOVES 2014a.
                          v1; non-MAR: NMIM
                          model.
------------------------------------------------------------------------
CAMD = EPA's Clean Air Markets Division database, com.mar. = commercial
  marine, EGU = electric generating unit, MAR = commercial marine,
  aircraft and rail locomotive, MOVES = Motor Vehicle Emissions
  Simulator, NEI = National Emissions Inventory, NMIM = National Mobile
  Inventory Model, WI AEI = Wisconsin's Air Emissions Inventory (which
  is used to develop NEI emissions).


   Table 2--Emissions Differences Between Wisconsin's Modified Inventory and Wisconsin's Original EPA-Approved
                                                    Inventory
----------------------------------------------------------------------------------------------------------------
                                                                VOC                             NOX
                                                 ---------------------------------------------------------------
                     Sector                          Approved                        Approved
                                                     inventory     RFP inventory     inventory     RFP inventory
----------------------------------------------------------------------------------------------------------------
Point...........................................            0.70            0.72            8.80           11.16
Area............................................            4.78            4.78            1.09            1.09
On-road.........................................            2.14            2.42            4.67            5.15
Non-road........................................            2.42            1.51            2.33            2.07
                                                 ---------------------------------------------------------------
    Total.......................................           10.04            9.43           16.89           19.47
----------------------------------------------------------------------------------------------------------------

B. 15% RFP Plan and 3% Contingency Plan

    The CAA requires that states with areas designated as nonattainment 
for ozone achieve RFP toward attainment of the ozone NAAQS. CAA section 
172(c)(2) contains a general requirement that nonattainment plans must 
provide for emission reductions that meet RFP. For areas classified 
moderate and above, section 182(b)(1) imposes a more specific RFP 
requirement that a state had to meet through a 15% reduction in VOC 
emissions from the baseline anthropogenic emissions within 6 years 
after November 15, 1990. The state must meet the 15% requirement by the 
end of the 6-year period, regardless of when the nonattainment area 
attains the NAAQS. As with other nonattainment plan requirements for 
more recent iterations of the ozone NAAQS, EPA has promulgated 
regulations and guidance to interpret the statutory requirements of the 
CAA.
    EPA's final rule to implement the 2008 ozone NAAQS (SIP 
Requirements Rule),\10\ addressed, among other things, the RFP 
requirements as they apply to areas designated nonattainment and 
classified as moderate for the 2008 ozone NAAQS.\11\ EPA interprets the 
15% VOC emission reduction requirement in CAA section 182(b)(1) such 
that a state that has already met the 15% requirement for VOC for an 
area under either the 1-hour ozone NAAQS or the 1997 8-hour ozone NAAQS 
would not have to fulfill that requirement through reductions of VOC 
again. Instead, EPA is interpreting CAA section 172(c)(2) to require 
states with such areas to obtain 15% ozone precursor emission 
reductions (VOC and/or NO<INF>X</INF>) over the first 6 years after the 
baseline year for the 2008 ozone NAAQS. Wisconsin previously met the 
15% VOC reduction requirement of CAA section 182(b)(1) for Kenosha 
County for the 1-hour ozone NAAQS.\12\ Therefore, the state may rely 
upon NO<INF>X</INF> and/or VOC emissions reductions to meet the RFP 
requirement for the 2008 ozone NAAQS.
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    \10\ 80 FR 12264.
    \11\ 80 FR 12264 at 12271 and 40 CFR 51.1110.
    \12\ For both the 1-hour ozone NAAQS and the 1997 ozone NAAQS, 
the entirety of Kenosha County was part of the 6-county Milwaukee 
nonattainment area. For the 2008 ozone NAAQS, Kenosha County 
(partial) is part of the Chicago nonattainment area, since the 
statistical area delineated based on U.S. Census Bureau data was 
updated to include Kenosha County as part of the Chicago statistical 
area. Wisconsin met the 15% VOC reduction requirement for the 
Milwaukee area for the 1-hour ozone NAAQS, which included the 
entirety of Kenosha County, therefore, the Wisconsin portion of the 
2008 Chicago nonattainment area (Kenosha County inclusive and east 
of I-94) has already met the 15% VOC reduction requirement.
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    EPA's SIP Requirements Rule indicates the base year for the 2008 
ozone NAAQS, for which areas were designated nonattainment effective 
July 20, 2012, can be 2011 or a different year of the states' 
choosing.\13\ However, EPA required that states selecting a pre-2011 
alternate baseline year must achieve 3% emission reductions each year 
after the initial 6-year period has concluded up to the beginning of 
the attainment year. For a multi-state area, states must agree on the 
same base year. Wisconsin, Illinois, and Indiana have all selected the 
EPA-recommended base year of 2011.
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    \13\ In South Coast Air Quality Management District v. EPA, No. 
15-1115, decided February 16, 2018, the United States Court of 
Appeals for the D.C. Circuit ruled to reverse the portion of the 
rule that allowed for alternate years. However, since all 3 states 
for this multi-state area chose the default of 2011 as the base 
year, the decision has no impact here.
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    States may not take credit for VOC or NO<INF>X</INF> reductions 
occurring from sources outside the nonattainment area for purposes of 
meeting the 15% RFP and 3% RFP requirements of CAA sections 172(c)(2), 
182(b)(1) and (c)(2)(B). Wisconsin's 15% RFP represents emissions 
reductions which occurred in Wisconsin's portion of the nonattainment 
area in the time period from 2011 to 2017 thereby satisfying this 
requirement.
    Except as specifically provided in CAA section 182(b)(1)(D) of the 
CAA, all state control measures approved into the SIP or Federal 
measures that provide emissions reductions that occur after the 
baseline emissions inventory year are creditable for purposes of the 
RFP requirements, provided that the reductions meet the standard

[[Page 40718]]

requirements for creditability which include being enforceable, 
quantifiable, permanent, and surplus in terms of not having previously 
been counted toward RFP.
    States must also include contingency measures in their 
nonattainment plans. The contingency measures required for areas 
classified as moderate and above under CAA sections 172(c)(9) and 
182(c)(9) must provide for the implementation of specific measures if 
the area fails to attain or to meet any applicable RFP milestone. The 
state must submit these measures for approval by EPA into the SIP as 
adopted measures that would take effect without further rulemaking 
action by the state or EPA upon a determination that an area failed to 
attain or to meet the applicable milestone. Per EPA guidance for 
purposes of the ozone NAAQS, contingency measures should represent one 
year's worth of RFP progress, amounting to reductions of at least 3% of 
the baseline emissions inventory for the nonattainment area. The 
purpose of the contingency measures is to provide additional emission 
reductions in the event of a failure to attain or meet any applicable 
milestone, which would occur while the state is revising its SIP for 
the area.\14\
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    \14\ 80 FR 12264 at 12285.
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    Regarding the contingency measures, EPA's prior guidance for 
purposes of the ozone NAAQS specifies that some portion of the 
contingency measures must include VOC reductions. This previous 
limitation is no longer necessary in all areas. In particular, EPA has 
concluded that states with nonattainment areas classified moderate and 
above that have already completed the initial 15% VOC reduction 
required by CAA section 182(b)(1)(A)(i), can meet the contingency 
measures requirement based entirely on NO<INF>X</INF> controls if that 
is what the state's analyses have demonstrated would be most effective 
in bringing the area into attainment. There is no minimum VOC 
requirement. Also, EPA is continuing its long-standing policy that 
allows promulgated Federal measures to be used as contingency measures 
as long as they provide emission reductions in the relevant years in 
excess of those needed for attainment or RFP.\15\
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    \15\ 80 FR 12264 at 12285.
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    Wisconsin submitted documentation showing that emission reductions 
in the Wisconsin portion of the Chicago area met the 15% RFP and 3% 
contingency requirements. Table 3 shows Wisconsin's estimated 
reductions from all sectors. Table 3 shows that the area's total VOC 
emissions decreased by 13.04% from 2011 to 2017 and 2.20% from 2017 to 
2018. Table 3 shows the area's total NO<INF>X</INF> emissions decreased 
by 15.41% from 2011 to 2017 and 2.25% from 2017 to 2018.

                          Table 3--Wisconsin's Source Sector Emissions in Tons per Summer Day (tpsd) for Eastern Kenosha County
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                VOC                                             NOX
                         Sector                          -----------------------------------------------------------------------------------------------
                                                               2011            2017            2018            2011            2017            2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...................................................            0.72            0.87            0.87           11.16           10.87           10.87
Area....................................................            4.78            4.77            4.74            1.09            1.08            1.08
Onroad..................................................            2.42            1.56            1.44            5.15            3.05            2.75
Nonroad.................................................            1.51            1.00            0.96            2.07            1.47            1.40
                                                         -----------------------------------------------------------------------------------------------
    Total (% decrease from 2011-2017 and 2017-2018).....            9.43            8.20            8.02           19.47           16.47           16.10
                                                          ..............        (13.04%)         (2.20%)  ..............        (15.41%)         (2.25%)
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    Wisconsin is able to meet the RFP and RFP contingency requirements 
entirely through Federal permanent and enforceable control measures 
within the mobile source sectors. Table 4 specifically contains the 
calculations showing Wisconsin's mobile source emissions reductions 
meet the RFP and RFP contingency requirements. The MOVES model for the 
on-road and non-road sectors assumed increases of 11-13% in vehicle or 
equipment population and usage while projecting a 34-41% reduction in 
ozone precursor emissions from 2011 to 2017. The estimated emissions 
reductions, therefore, cannot be attributed to reductions in source 
activity. Table 4 shows that of the 14.95% total VOC reductions from 
2011-2018, 14.63% \16\ came from the mobile sector. Table 4 also shows 
that of the 17.31% total NO<INF>X</INF> reductions from 2011-2018, 
15.77% came from the mobile sector. Wisconsin is choosing to count 5% 
VOC reductions and 10% NO<INF>X</INF> reductions from 2011-2017 to meet 
the 15% RFP requirement, and 1% VOC reductions and 2% NO<INF>X</INF> 
reductions from 2011-2018 to meet the 3% RFP contingency requirement. 
In other words, 6% VOC reductions and 12% NO<INF>X</INF> reductions for 
a total of 18% to satisfy the 15% RFP and 3% RFP contingency 
requirements.
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    \16\ Net the increase in emissions from the point source sector 
from 2011-2017 (see Table 3).

   Table 4--Wisconsin's Mobile Source Emissions Reductions From 2011-2017 Are Sufficient To Meet the 15% RFP Requirement and Wisconsin's Mobile Source
        Emissions Reductions From 2017-2018 Are Sufficient To Meet the 3% RFP Contingency Requirement for Wisconsin's Portion of the Chicago Area
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                                                                                VOC                                             NOX
                                                         -----------------------------------------------------------------------------------------------
                                                               2011            2017            2018            2011            2017            2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total emissions (tpsd)..................................            9.43            8.20            8.02           19.47           16.47           16.10
% Reduction from base year emissions from 2011-2017 and   ..............          13.04%           1.91%  ..............          15.41%           1.90%
 2017-2018, respectively................................
                                                         -----------------------------------------------------------------------------------------------

[[Page 40719]]

 
    Total...............................................  ..............              14.95%              ..............              17.31%
                                                         -----------------------------------------------------------------------------------------------
Mobile sector (onroad + nonroad) emissions (tpsd).......            3.93            2.56            2.40            7.22            4.52            4.15
% Reductions attributable to the mobile sector from base  ..............          12.94%           1.70%  ..............          13.87%           1.90%
 year emissions from 2011-2017 \17\ and 2017-2018,
 respectively...........................................
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............              14.63%              ..............              15.77%
                                                         -----------------------------------------------------------------------------------------------
Wisconsin's choice for 15% RFP requirement and 3% RFP     ..............              5%              1%  ..............             10%              2%
 contingency requirement, respectively..................
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............                6%                ..............                12%
--------------------------------------------------------------------------------------------------------------------------------------------------------


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    \17\ Net the increase in emissions from the point source sector 
from 2011-2017 (see Table 3).
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    The MOVES model incorporates a number of Federal emissions control 
programs into its projections. These emissions reduction measures are 
permanent and enforceable and are implemented everywhere, including in 
the nonattainment area. Tables 5 and 6 list the Federal permanent and 
enforceable control programs modeled by the MOVES model for the on-road 
sector and the non-road sector, respectively.

      Table 5--Permanent and Enforceable Control Programs Modeled by the MOVES Model for the Onroad Sector
----------------------------------------------------------------------------------------------------------------
       On-road control program                Pollutants              Model year *              Regulation
----------------------------------------------------------------------------------------------------------------
Passenger vehicles, SUVs, and light    VOC & NOX..............  2004-09+ (Tier 2) 2017+  40 CFR Part 85 & 86.
 duty trucks--emissions and fuel                                 (Tier 3).
 standards.
Light-duty trucks and medium duty      VOC....................  2004-10................  40 CFR Part 86.
 passenger vehicle--evaporative
 standards.
Heavy-duty highway compression         VOC & NOX..............  2007+..................  40 CFR Part 86.
 engines.
Heavy-duty spark ignition engines....  VOC & NOX..............  2005-08+...............  40 CFR Part 86.
Motorcycles..........................  VOC & NOX..............  2006-10 (Tier 1 & 2)...  40 CFR Part 86.
Mobile Source Air Toxics--fuel         Organic Toxics & VOC...  2009-15 **.............  40 CFR Part 59, 80, 85,
 formulation, passenger vehicle                                                           & 86.
 emissions, and portable container
 emissions.
Light duty vehicle corporate average   Fuel efficiency (VOC &   2012-16 & 2017-25......  40 CFR Part 600.
 fuel economy standards.                NOX).
----------------------------------------------------------------------------------------------------------------
* The range in model years affected can reflect phasing of requirements based on engine size or initial years
  for replacing earlier tier requirements.
** The range in model years reflects phased implementation of fuel, passenger vehicle, and portable container
  emission requirements as well as the phasing by vehicle size and type.


 Table 6--Permanent and Enforceable Control Programs Modeled by the MOVES Model or Considered in Development of
                                    the MAR Inventory for the Nonroad Sector
----------------------------------------------------------------------------------------------------------------
      Nonroad control program *               Pollutants             Model year **              Regulation
----------------------------------------------------------------------------------------------------------------
Aircraft.............................  VOC & NOX..............  2000-2005+.............  40 CFR Part 87.
Compression Ignition.................  VOC & NOX..............  2000-2015+ (Tier 4)....  40 CFR Part 89 & 1039.
Large Spark Ignition.................  VOC & NOX..............  2007+..................  40 CFR Part 1048.
Locomotive Engines...................  VOC & NOX..............  2012-2014 (Tier 3)       40 CFR Part 1033.
                                                                 2015+ (Tier 4).
Marine Compression Ignition..........  VOC & NOX..............  2012-2018..............  40 CFR Part 1042.
Marine Spark Ignition................  VOC & NOX..............  2010+..................  40 CFR Part 1045.
Recreational Vehicle.................  VOC & NOX..............  2006-2012 (Tier 1-3)...  40 CFR Part 1051.
Small Spark Ignition Engine <19 Kw--   VOC & NOX..............  2005-2012 (Tier 2 & 3).  40 CFR Part 90 & 1054.
 emission standards.

[[Page 40720]]

 
Small Spark Ignition Engine <19 Kw--   VOC....................  2008-2016..............  40 CFR Part 1045, 54, &
 evaporative standards.                                                                   60.
----------------------------------------------------------------------------------------------------------------
* Compression ignition applies to diesel non-road compression engines including engines operated in
  construction, agricultural, and mining equipment. Recreational vehicles include snowmobiles, off-road
  motorcycles, and all-terrain vehicles. Small spark ignition engines include engines operated in lawn and hand-
  held equipment.
** The range in model years affected can reflect phasing of requirements based on engine size or initial years
  for replacing earlier tier requirements.

    These emissions reductions are surplus, meaning that Wisconsin has 
not previously claimed them for the purposes of other ozone NAAQS 
requirements. These emission reductions are also permanent, 
enforceable, and occurred during the 6-year attainment planning time 
period, which started with the 2011 base year. Wisconsin has 
demonstrated that these emissions reductions result in at least an 18% 
reduction (15% for RFP and 3% for the RFP contingency measure 
requirements, respectively) from the 2011 base year inventory emissions 
net of growth (and including a MVEB safety margin of 7.5% which will be 
discussed in more detail below). Thus, EPA is proposing to approve 
these emissions reductions as satisfying the 15% RFP and 3% RFP 
contingency measure requirements for the moderate nonattainment plan 
for the Wisconsin portion of the Chicago area for the 2008 ozone NAAQS.
    EPA notes that the measures Wisconsin is relying upon to meet the 
contingency measures requirement are already implemented. Contingency 
measures may include Federal measures and local measures already 
scheduled for implementation, as long as the resulting emission 
reductions are in excess of those needed for attainment or to meet RFP 
in the nonattainment plan. EPA interprets the CAA not to preclude a 
state from implementing such measures before they are triggered by a 
failure to meet RFP or failure to attain. For more information on 
contingency measures, see the General Preamble for the Implementation 
of Title I of the CAA Amendments of 1990 (April 16, 1992, 57 FR 13498, 
13510) and the 2008 Ozone Implementation Rule (March 6, 2015, 80 FR 
12264, 12285).
    The appropriateness of relying on already-implemented reductions to 
meet the contingency measures requirement has been addressed in two 
Federal circuit court decisions. See Louisiana Environmental Action 
Network (LEAN) v. EPA, 382 F.3d 575, 586 (5th Cir. 2004), Bahr v. 
United States EPA, 836 F.3d 1218 (9th Cir. 2016), cert. denied, 199 L. 
Ed. 2d 525, 2018 U.S. LEXIS 58 (Jan. 8, 2018). EPA believes that the 
language of section 172(c)(9) and 182(c)(9) is ambiguous with respect 
to this issue, and that it is reasonable for the agency to interpret 
the statutory language to allow approval of already implemented 
measures as contingency measures, so long as they meet other parameters 
such as providing excess emissions reductions that the state has not 
relied upon to meet RFP or for attainment in the nonattainment plan for 
the NAAQS at issue. Until the Bahr decision, under EPA's longstanding 
interpretation of CAA section 172(c)(9) and 182(c)(9), states could 
rely on control measures that were already implemented (so called 
``early triggered'' contingency measures) as a valid means to meet the 
Act's contingency measures requirement. The Ninth Circuit decision in 
Bahr leaves a split among the Federal circuit courts, with the Fifth 
Circuit upholding the Agency's interpretation of section 172(c)(9) to 
allow early triggered contingency measures and the Ninth Circuit 
rejecting that interpretation. The Seventh Circuit in which Wisconsin 
is located has not addressed the issue, nor has the Supreme Court or 
any other circuit court other than the Fifth and Ninth.
    Because there is a split in the Federal circuits on this issue, EPA 
expects that states located in circuits other than the Ninth may elect 
to rely on EPA's longstanding interpretation of section 172(c)(9) 
allowing early triggered measures to be approved as contingency 
measures, in appropriate circumstances. EPA's revised Regional 
Consistency regulations pertaining to SIP provisions authorize the 
Agency to follow this interpretation of section 172(c)(9) in circuits 
other than the Ninth. See 40 CFR part 56. To ensure that early 
triggered contingency measures appropriately satisfy all other relevant 
CAA requirements, the EPA will carefully review each such measure, and 
intends to consult with states considering such measures early in the 
attainment plan development process.
    As shown above, the emissions reductions projected through 2018 are 
sufficient to meet the requirements for contingency measures, 
consistent with EPA's interpretation of the CAA to allow approval of 
already implemented control measures as contingency measures in states 
outside the Ninth Circuit. Therefore, we propose approval of the 
contingency measures submitted by the state in the nonattainment plan 
for the Wisconsin portion of the Chicago area.

C. Motor Vehicle Emissions Budgets

    Under section 176(c) of the CAA, new transportation plans, 
programs, or projects that receive Federal funding or support, such as 
the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the SIP. Conformity to a SIP means that transportation 
activities will not produce new air quality violations, worsen existing 
violations, or delay timely attainment of the NAAQS. Under the CAA, 
states are required to submit, at various times, control strategy plans 
for nonattainment areas and maintenance plans for areas that qualify 
for redesignation to attainment of the ozone standards (maintenance 
areas).\18\ These control strategy plans (including reasonable further 
progress plans and attainment plans for purposes of the ozone NAAQS) 
and maintenance plans must include MVEBs for the relevant criteria 
pollutant or its precursor pollutants (VOC and NO<INF>X</INF> for 
ozone) to address pollution from on-road transportation sources. The 
MVEBs are the portion of the total allowable emissions that are 
allocated to highway and transit vehicle use that, together with 
emissions from other sources in the area, will meet an RFP milestone or 
provide for attainment or maintenance of the NAAQS.\19\ The MVEB serves 
as a ceiling on emissions

[[Page 40721]]

from an area's planned transportation system.\20\
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    \18\ See the SIP requirements for the 2008 ozone standards in 
EPA's March 6, 2015 implementation rule (80 FR 12264).
    \19\ 40 CFR 93.101.
    \20\ The MVEB concept is further explained in the preamble to 
the November 24, 1993, Transportation Conformity Rule (58 FR 62188). 
The preamble also describes how to establish the MVEB in the SIP and 
how to revise the MVEB, if needed, subsequent to initially 
establishing a MVEB in the SIP.
---------------------------------------------------------------------------

    When reviewing submitted control strategy or maintenance plan 
submissions, EPA must affirmatively find that the MVEBs contained 
therein are adequate for use in determining transportation conformity. 
Once EPA affirmatively finds that the submitted MVEBs are adequate for 
transportation purposes, then the MVEBs must be used by state and 
Federal agencies in determining whether proposed transportation 
projects conform to the SIP as required by section 176(c) of the CAA.
    EPA's substantive criteria for determining adequacy of a MVEB are 
set out in 40 CFR 93.118(e)(4). The process for determining adequacy 
consists of three basic steps: public notification of a SIP submission; 
provision for a public comment period; and EPA's adequacy 
determination. This process for determining the adequacy of submitted 
MVEBs for transportation conformity purposes was initially outlined in 
EPA's May 14, 1999 guidance, ``Conformity Guidance on Implementation of 
March 2, 1999, Conformity Court Decision.'' EPA adopted regulations to 
codify the adequacy process in the Transportation Conformity Rule 
Amendments for the ``New 8-Hour Ozone and PM<INF>2.5</INF> National 
Ambient Air Quality Standards and Miscellaneous Revisions for Existing 
Areas; Transportation Conformity Rule Amendments--Response to Court 
Decision and Additional Rule Change,'' on July 1, 2004.\21\ Additional 
information on the adequacy process for transportation conformity 
purposes is available in a June 30, 2003, proposed rule titled, 
``Transportation Conformity Rule Amendments: Response to Court Decision 
and Additional Rule Changes.'' \22\
---------------------------------------------------------------------------

    \21\ 69 FR 40004.
    \22\ 68 FR 38974, 38984.
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    On January 16, 2015, Wisconsin submitted an early progress SIP 
submission with MVEBs for its portion of the Chicago 2008 ozone 
nonattainment area. On April 1, 2015, EPA found Wisconsin's MVEBs 
adequate for use in transportation conformity determinations.\23\ As 
part of its nonattainment plan submitted on April 17, 2017, and 
supplemented on January 23, 2018, Wisconsin submitted new 2017 and 2018 
NO<INF>X</INF> and VOC MVEBs, which are lower than Wisconsin's previous 
MVEBs found adequate by EPA. Wisconsin's 2017 and 2018 MVEBs include a 
safety margin that Wisconsin applied in the form of a 7.5% greater 
mobile source activity than actually projected for 2017 and 2018, 
respectively. By applying this additional 7.5% on the front end of the 
analysis, Wisconsin's MOVES model output estimates of NO<INF>X</INF> 
and VOC emissions for 2017 and 2018 include a built-in safety margin. 
States typically do this in an effort to accommodate future variations 
in travel demand models and vehicle miles traveled forecast. As shown 
in Table 4 above, Wisconsin has demonstrated that the Wisconsin portion 
of the Chicago area can meet the 15% RFP and 3% RFP contingency measure 
emission reduction requirements for the 2008 ozone NAAQS with mobile 
source (onroad + nonroad) emissions, which include an onroad budget of 
1.56 tpsd VOC and 3.05 tpsd NO<INF>X</INF> in 2017 and 1.44 tpsd VOC 
and 2.75 tpsd NO<INF>X</INF> in 2018 (Table 7 below), and these 
emissions will remain under 2017 and 2018 RFP plus contingency measure 
target levels, even with the inclusion of the added 7.5% safety margin.
---------------------------------------------------------------------------

    \23\ 80 FR 17428.
---------------------------------------------------------------------------

    Wisconsin's 2017 and 2018 MVEBS were developed as part of an 
interagency consultation process which includes Federal, state, and 
local agencies. The MVEBS were clearly identified and precisely 
quantified. These MVEBs, when considered together with all other 
emissions sources, are consistent with the 15% RFP and 3% contingency 
measure emission reduction requirements for the 2008 8-hour ozone NAAQS 
for this area. Therefore, EPA is proposing to approve Wisconsin's 
revised 2017 and 2018 MVEBs into the Wisconsin SIP. If EPA finalizes 
this approval, these MVEBs will replace the MVEBs previously 
established for the 2008 ozone NAAQS early progress plan and Wisconsin 
must use these updated MVEBs for future transportation conformity 
determinations for the Wisconsin portion of the Chicago nonattainment 
area. The 2017 and 2018 MVEBs are listed in Table 7.

  Table 7--Motor Vehicle Emissions Budgets (MVEBs) for Eastern Kenosha
                        County for 2017 and 2018
------------------------------------------------------------------------
                                            Emissions  (tons per summer
                                                       day)
                  Year                   -------------------------------
                                                VOC             NOX
------------------------------------------------------------------------
2017....................................            1.56            3.05
2018....................................            1.44            2.75
------------------------------------------------------------------------

D. Motor Vehicle I/M Program Certification

    The requirement to adopt a motor vehicle I/M program for moderate 
ozone nonattainment areas is described in CAA section 182(b)(4) and the 
regulations for basic and enhanced I/M programs are found at 40 CFR 
part 51, subpart S. Under these cumulative requirements, states with 
areas classified as moderate nonattainment for ozone with 1990 Census-
defined urbanized populations of 200,000 or more are required to adopt 
basic I/M programs, while serious and higher classified ozone 
nonattainment areas outside of the northeast ozone transport region 
with 1980 Census-defined urbanized populations of 200,000 or more are 
required to adopt enhanced I/M programs. The Chicago area meets the 
criteria for mandatory I/M under the 2008 ozone NAAQS and the Wisconsin 
portion of the Chicago area is already operating an enhanced I/M 
program due to being designated nonattainment and classified as serious 
or above under an earlier ozone NAAQS. EPA initially approved on August 
16, 2001,\24\ Wisconsin's I/M program and later approved on September 
19, 2013,\25\ revisions to Wisconsin's I/M program. Wisconsin's 
approved enhanced I/M program in the SIP is consistent with the 
requirements of 40 CFR part 51, subpart S for the alternate low 
enhanced performance standards. In its April 17, 2017, submission, 
Wisconsin certified that it still meets the Federal enhanced I/M 
performance requirement. Therefore, EPA is proposing to find that 
Wisconsin has met the I/M requirement for its portion of the Chicago 
area for the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    \24\ 66 FR 42949.
    \25\ 78 FR 57501.
---------------------------------------------------------------------------

E. NOX RACT Certification

    Section 182(f) of the CAA requires RACT level controls for major 
stationary sources of NO<INF>X</INF> located in moderate ozone 
nonattainment areas. ``RACT'' is defined as the lowest emission 
limitation that a particular source is capable of meeting by the 
application of control technology that is reasonably available 
considering technological and economic feasibility.\26\ Section 302 of 
the CAA defines a major stationary source as any facility which has the 
potential to emit 100 tons per year of any air pollutant. EPA approved 
Wisconsin's NO<INF>X</INF> RACT program into the SIP on October 19, 
2010,\27\ for purposes of the 1997 ozone NAAQS. Wisconsin's 
NO<INF>X</INF> RACT requirements

[[Page 40722]]

are codified at NR 428.20 to 428.26 of the Wisconsin Administrative 
Code. Wisconsin's NO<INF>X</INF> RACT rules are applicable to major 
stationary sources of NO<INF>X</INF> located in Wisconsin's moderate 
ozone nonattainment areas, including Kenosha County. The only major 
source of NO<INF>X</INF> in the portion of Kenosha County that is 
designated nonattainment for the 2008 ozone NAAQS is Wisconsin Electric 
Power Company, D/B/A We Energies-Pleasant Prairie Power Plant. This 
source has selective catalytic reduction (SCR) technology for 
controlling NO<INF>X</INF> emissions from each of its two coal-fired 
boilers and has been subject to an emission limit of 0.10 pounds of 
NO<INF>X</INF> per Million British Thermal Unit (MMBTU) since May 1, 
2009. Because Wisconsin has EPA-approved NO<INF>X</INF> RACT rules 
applicable to Kenosha County sources in its SIP, and EPA considers the 
current control technology and limit at the major stationary source in 
the 2008 ozone NAAQS nonattainment portion of Kenosha County to be RACT 
for NO<INF>X</INF>, EPA is proposing to find that Wisconsin has 
satisfied the NO<INF>X</INF> RACT requirements for its moderate 
nonattainment plan for the 2008 ozone NAAQS for the Wisconsin portion 
of the Chicago nonattainment area, which is the portion of Kenosha 
County inclusive and east of Highway 94.
---------------------------------------------------------------------------

    \26\ 44 FR 53762.
    \27\ 75 FR 64155.
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F. Emissions Statement Certification

    For marginal ozone nonattainment areas, states must adopt SIP 
provisions requiring emissions statements from stationary sources of 
VOC and NO<INF>X</INF>.\28\ States may waive this requirement for 
sources emitting less than 25 tons per year of VOC and less than 25 
tons per year of NO<INF>X</INF>.\29\ Under NR 438 of the Wisconsin 
Administrative Code, Wisconsin requires annual NO<INF>X</INF> and VOC 
emission reporting from any facility in the state that emits 
NO<INF>X</INF> above 10,000 pounds (5 tons) per year and VOC above 
6,000 pounds (3 tons) per year. This includes facilities in 
nonattainment areas such as the Wisconsin portion of the Chicago 
nonattainment area for the 2008 ozone NAAQS. EPA previously approved NR 
438 into the Wisconsin SIP on December 6, 1993.\30\
---------------------------------------------------------------------------

    \28\ CAA section 182(a)(3)(B)(i).
    \29\ CAA section 182(a)(3)(B)(ii).
    \30\ 58 FR 64155.
---------------------------------------------------------------------------

    As part of a moderate ozone nonattainment plan, states should 
certify that the proper emissions statement reporting requirements are 
in place. If an area has a previously approved emission statement 
provision in the SIP in force for the 1997 ozone NAAQS or the 1-hour 
ozone NAAQS that covers all portions of the nonattainment area for the 
2008 ozone NAAQS, then such rule should be sufficient for purposes of 
the emissions statement requirement for the 2008 ozone NAAQS. The state 
should review the existing rule to ensure it is adequate and, if it is, 
may rely on it to meet the emission statement requirement for the 2008 
ozone NAAQS. In cases when an existing emission statement requirement 
is still adequate to meet the requirements of the implementation rule 
for the 2008 ozone standard, states can provide the rationale for that 
determination to EPA in a written statement in its SIP submission to 
meet this requirement.\31\
---------------------------------------------------------------------------

    \31\ 80 FR 12264 at 12291.
---------------------------------------------------------------------------

    In a separate submission to EPA on August 15, 2016, Wisconsin 
included a certification that its emissions statement provision in the 
SIP is still adequate to meet the requirements for the Wisconsin 
portion of the Chicago 2008 ozone nonattainment area. In Wisconsin's 
January 23, 2018, supplemental submission to EPA regarding Wisconsin's 
moderate area ozone nonattainment plan for the Chicago area, Wisconsin 
requested that EPA act on its August 15, 2016, emission statement 
certification as part of the action on Wisconsin's nonattainment plan 
elements included in this proposal. Because Wisconsin has an EPA 
approved SIP provision requiring stationary sources to report annually 
their NO<INF>X</INF> and VOC emissions at least as high as 25 tons per 
year for each precursor, EPA proposes that Wisconsin has satisfied the 
emissions statement requirement for its nonattainment plan for the 
Chicago area for the purposes of the 2008 ozone NAAQS.

III. What action is EPA proposing?

    EPA is proposing to approve revisions to Wisconsin's SIP pursuant 
to section 110 and part D of the CAA and EPA's regulations because 
Wisconsin's April 17, 2017, nonattainment plan submissions and January 
23, 2018, supplement along with a prior submission on August 15, 2016, 
satisfy the emission inventory, RFP, RFP contingency measure, 
NO<INF>X</INF> RACT, emissions statement, I/M, and transportation 
conformity requirements for the Wisconsin portion of the Chicago area 
for the 2008 ozone NAAQS.

IV. Statutory and Executive Order Reviews

    Under the CAA, 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. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
    <bullet> Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is 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.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is 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 CAA; and
    <bullet> Does 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as

[[Page 40723]]

specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

    Dated: August 1, 2018.
James Payne,
Acting Deputy Regional Administrator, Region 5.
[FR Doc. 2018-17590 Filed 8-15-18; 8:45 am]
 BILLING CODE 6560-50-P


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