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AGENCY: United States Environmental Protection Agency (USEPA).
40 CFR PART 81

Designation of Areas for Air Quality Planning Purposes; Attainment Status Designations: WI

[WI9-1-5269; FRL-4095-4]
57 FR 3013

January 27, 1992
ACTION: Final rule.

SUMMARY: On September 8, 1988, (53 FR 34791), USEPA proposed to disapprove a request from the State of Wisconsin to redesignate a subcity portion of Green Bay, Wisconsin (Brown County) from primary nonattainment to attainment for sulfur dioxide (SO2). USEPA's proposed action was based on the State's failure to provide sufficient evidence that: Certain necessary stack modifications at Wisconsin Public Service Company (WPS)-Pulliam, Nicolet Paper, and Green Bay Packaging had been completed; and all sources were in compliance with the emission limits in the recently submitted State rule. USEPA also stated that, even if these problems had not existed, final redesignation could not occur until USEPA had approved the State SO2 plan for Green Bay. USEPA approved the State Implementation Plan for this subcity portion of Green Bay on November 5, 1991 (56 FR 56467).

In today's Federal Register final rule, USEPA is approving the State's request to redesignate Green Bay (Brown County), Wisconsin, from nonattainment to attainment for SO2 because the Wisconsin Department of Natural Resources (WDNR) submitted comments containing sufficient data to support its request to redesignate Brown County from nonattainment to attainment for SO2 .

EFFECTIVE DATE: This final rule becomes effective on February 26, 1992.

ADDRESSES: Copies of the redesignation request, technical support documents and the supporting air quality data are available at the following addresses:

U.S. Environmental Protection Agency, Region V, Air Toxics and Radiation Branch (5AT-26), 230 South Dearborn Street, Chicago, Illinois 60604.

Wisconsin Department of Natural Resources, Bureau of Air Management, 101 South Webster, Madison, Wisconsin 53707.

FOR FURTHER INFORMATION CONTACT: Pamela Blakley, (312) 886-6054.

TEXT: SUPPLEMENTARY INFORMATION: Under section 107(d) of the Clean Air Act (CAA), the Administrator of USEPA has promulgated the National Ambient Air Quality Standard (NAAQS) attainment status for all areas within each State. For Wisconsin, see 43 FR 8962 (March 3, 1978), and 43 FR 45993 (October 5, 1978), codified at 40 CFR 81.350. These area designations are subject to revision whenever sufficient data becomes available to warrant a redesignation. A portion of the City of Green Bay, n1 Wisconsin in Brown County, was designated as not attaining the primary SO2 standards. For areas designated nonattainment for SO2 , and SO2 State Implementation Plan (SIP) is required which satisfies the requirements of section 110(a) and part D of the CAA, including assuring the attainment and maintenance of the SO2 NAAQS.

n1 Brown County (City of Green Bay): Subcity primary SO2 nonattainment area is defined as follows:

North: Green Bay.

West: W. Mason St. and Ashland Ave., along Ashland north to Matter St., west to Crocker St., north on Crocker St. to Bylsby, then to Green Bay.

South: W. Mason St. and Ashland Ave., east along Mason to Irwin Ave.

East: W. Mason St. and Irwin Ave., along Irwin Ave. north to Green Bay.

Remainder of Corporate Limits of Green Bay is designated "cannot be classified".

Remainder of Brown County is designated attainment.

On May 7, 1987, pursuant to section 107(d)(5) of the CAA, n2 the WDNR requested that the City of Green Bay nonattainment area be redesignated to attainment of the SO2 NAAQS.

n2 The Clean Air Act was amended on November 15, 1990, Pub. L. 101-549, codified at 42 U.S.C. 7401-7671q. References to the pre-amended Act are cited as CAA and references to the amended Act will be cited as CAAA.

Redesignation Requirements

Under the pre-amended Act, USEPA's SO2 redesignation requirements implementing the CAA were found in two memoranda: Sheldon Meyers to Air and Waste Management Division Directors, "Section 107 Designation Policy Summary", April 21, 1983; and G.T. Helms to Air Branch Chiefs, "Section 107 Questions and Answers", December 23, 1983. USEPA based its proposed disapproval of the Green Bay SO2 redesignation request for this subcity portion on the failure of Wisconsin to meet the CAA criteria for redesignation as interpreted in those memoranda. The rationale for the disapproval is discussed in greater detail in USEPA's September 8, 1988 proposal (53 FR 34791).

On November 15, 1990, the Clean Air Act Amendments (CAAA) of 1990 were enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q (1991). The amended Act added several new requirements for redesignation from nonattainment to attainment, most notably, the requirement for a maintenance plan that meets the requirements of section 175A of the CAAA. Section 107(d)(3)(E), 42 U.S.C. 7407(d)(3)(E). The effect of the amended Act is discussed more fully under "Requirements under the CAAA," below.

Proposal and Comments

On September 8, 1988, USEPA proposed to disapprove Wisconsin's request to redesignate the subcity portion of Green Bay from primary nonattainment/unclassifiable to attainment for SO2 . USEPA's proposed action was based on the State's failure to provide sufficient evidence that: (1) The necessary stack modifications at WPS-Pulliam, Nicolet Paper, and Green Bay Packaging had been completed, and (2) all major sources were in compliance with the emission limits in the recently submitted State rule. These stack modifications were requested as part of the Green Bay SO2 SIP revision, and were found to be consistent with USEPA's Good Engineering Practice Stack Height Regulations. In addition, USEPA also noted that final redesignation could not occur until the State Green Bay SO2 plan for this subcity portion had been approved. During the public comment period USEPA received comments from the Green Bay Industrial Coalition (GBIC) and from WDNR. Both commenters opposed the disapproval and supported redesignation of Green Bay. Summarized below is USEPA's evaluation of the public comments received.

The GBIC opposed USEPA's proposed disapproval action and urged WDNR and USEPA to work together to resolve the deficiencies cited in the Notice of Proposed Rulemaking. WDNR did, in fact, submit additional information which showed that the stacks in question had been constructed and stated that the major sources in Green Bay were in compliance with the new State rule. In addition, both commentors (GBIC and WDNR) also expressed the concern that USEPA had not acted in a timely fashion on the State rule for Green Bay.

Concerning the additional information submitted by WDNR, USEPA acknowledges that new stacks have been constructed at WPS-Pulliam, Nicolet Paper, and Green Bay Packaging. n3

n3 The State rule for Green Bay Packaging specifies one set of emission limits (ranging from 2.87-3.88 pounds of SO2 per million British Thermal Units -- lbs/MMBTU) for all boilers ducted to a new 65 meter (m) stack and a second emission limit (0.5 lbs/MMBTU) for all boilers ducted to their existing (less than 65m) stacks. Based on the information submitted by WDNR, Boiler 26 is now ducted to a 65m stack, but the other boilers (Boilers 21-25) are still ducted to their existing (less than 65m) stacks. Consequently, Boilers 21-25 must meet a 0.5 lbs/MMBTU emission limit until such time as they are connected to the 65m stack.

Requirements Under the CAAA

Since the CAAA were enacted prior to today's action, USEPA would generally be required to apply the new law to actions currently pending before the Agency. However, USEPA does not believe that Congress intended to impose new requirements on those redesignations that had substantially completed the redesignation process. n4 Furthermore, the Agency is not required to apply a new law where strict application of the new provisions would produce an irrational or unjust result. See 56 FR 37285, 37286-87 (Aug. 6, 1991).

n4 EPA does not believe, however, that Congress clearly intended these new requirements to apply to newly submitted redesignation requests and those for which USEPA was just beginning the redesignation process.

Literal application of the new redesignation requirements would produce an irrational or unjust result in the present circumstances. In addition, it would be unreasonable to require both the State, which has completed all necessary action on its part, and USEPA, which had substantially completed all necessary action, to repeat these steps under the new provisions of the CAAA. USEPA initially proposed to disapprove the submission in September of 1988 but indicated required elements that would allow the Agency to approve the submittal. Wisconsin submitted responsive technical support during the public comment period. These submittals cured the two deficiencies and USEPA determined to approve the redesignation request. Moreover only one other comment was received and that commenter supported redesignation.

Because the action was substantially complete prior to enactment, and the only remaining action was for USEPA to publish its final approval of the redesignation, it would be unequitable to require Wisconsin to re-initiate the redesignation process by making a new and more complex submittal and to subject the Green Bay area to the new requirements for nonattainment areas during the period it takes to meet these new redesignation requirements.


USEPA is approving the redesignation request for the subcity portion of Green Bay, Wisconsin (Brown County) from nonattainment to attainment for the pollutant SO2, because the WDNR has demonstrated that the area has attained the SO2 NAAQS in accordance with the pre-amended CAA.

Nothing in this action should be construed as permitting, allowing, or establishing a precedent for any future request for revision to any SIP. Each request for a revision to a SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

This action is classified as a Table Two redesignation action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989, (54 FR 2214-2225). On January 6, 1989, the Office of Management and Budget (OMB) waived Table Two and Three SIP revisions (54 FR 2222) from the requirements of section 3 of Executive Order 12291 for a period of 2 years. USEPA has submitted a request for a permanent waiver for Table 2 and Table 3 SIP revisions. OMB has agreed to continue the temporary waiver until such time as its rules on USEPA's request.

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 March 27, 1992. This action may not be challenged later in proceedings to enforce its requirements. (See 307(b)(2).)

List of Subjects in 40 CFR Part 81

Air pollution control, Environmental protection, National parks, Wilderness areas, Sulfur dioxide.

Authority: 42 U.S.C. 7401-7671q.

Dated: December 24, 1991.

Valdas V. Adamkus, Regional Administrator.

Part 81 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:


1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

2. In SS 81.350, in the "Wisconsin -- SO2 " table, under AQCR 237, the entry for Brown County is revised to read as follows:

SS 81.350 Wisconsin.

* * * * *

                              Wisconsin -- SO2

Designated area   Does not     Does not    Cannot be   Better
                  meet         meet        classified  than
                  primary      secondary               national
                  standards    standards               standards

* * * * * * *
AQCR 237:
Brown County (city of
Green Bay): Subcity area
defined as follows                                        X
North: Green Bay
West: W. Mason St. and
Ashland Ave., along
Ashland north to Matter
St., west to Crocker St.,
north on Crocker St. to
Bylsby St., then to Green
South: W. Mason St. and
Ashland Ave., east along
Mason to Irwin Ave.
East: W. Mason St., and
Irwin Ave., along Irwin
Ave. north to Green Bay
Remainder of corporate
limits of Green Bay                                       X
Remainder of Brown County                                 X
* * * * * * *

[FR Doc. 92-1653 Filed 1-24-92; 8:45 am]


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