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VOL. 58, No. 98
Rules and Regulations


40 CFR Parts 52 and 81
[WI 14-1-5279; FRL-4532-7]

Designation of Areas for Air Quality Planning Purposes: Wisconsin; Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; Milwaukee Sulfur Dioxide Maintenance Plan and Redesignation Request

58 FR 29783

DATE: Monday, May 24, 1993
ACTION: Final rule.

SUMMARY: A dispersion modeling analysis and ambient air quality data from 1980 to 1991 indicate that the Milwaukee sulfur dioxide (SO2) nonattainment area has attained the National Ambient Air Quality Standard (NAAQS) for SO2. Additionally, in accordance with the Clean Air Act Amendments of 1990, the State of Wisconsin has submitted a maintenance plan for SO2 which projects continued attainment of the SO2 NAAQS in the Milwaukee area. USEPA is approving in this notice: the Milwaukee SO2 maintenance plan as a revision to the State Implementation Plan (SIP) to achieve air quality standards in the State of Wisconsin and the Milwaukee Sulfur Dioxide redesignation request. USEPA's action is based upon a redesignation request which was submitted by the State of Wisconsin on May 12, 1986, and a maintenance plan SIP revision which was submitted on June 12, 1992. The intended effects of this action are to approve the Milwaukee maintenance plan as a SIP revision and to redesignate a portion of Milwaukee County from nonattainment to attainment of the primary national ambient air quality standards for sulfur dioxide.

DATES: These actions will be effective on July 23, 1993 unless notice is received by June 23, 1993 that someone wishes to submit adverse or critical comments. Such notice may be submitted to Carlton Nash at the USEPA Regional Office address listed below. If the effective date is delayed, timely notice will be published in the Federal Register (FR).

ADDRESSES: Copies of the State submittal and USEPA's technical analysis for this action are available for public inspection during normal business hours at the following address: (It is recommended that you telephone Patrick D. Dolwick at (312) 886-6053, before visiting the Region 5 Office). U.S. Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Written comments should be sent to: Carlton Nash, Chief, Regulation Development Section, Air Toxics and Radiation Branch (AT-18J), Region 5, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Patrick D. Dolwick, Air Toxics and Radiation Branch, Regulation Development Section (AT-18J), Region 5, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)886-6053.


I. Background Information

Based on monitored violations of the primary sulfur dioxide NAAQS in 1979 and the State's request to redesignate, the United States Environmental Protection Agency (USEPA) designated a sub-city area of Milwaukee, Wisconsin, located in Milwaukee County as a primary nonattainment area for SO2 on October 10, 1980. As a result, the State revised its SO2 SIP to control the emissions that precipitated the violations in Milwaukee. On May 12, 1986, the Wisconsin Department of Natural Resources (WDNR) requested USEPA to redesignate this portion of Milwaukee County from nonattainment to attainment of the primary SO2 NAAQS.

The nonattainment area in Milwaukee is defined in title 40, Chapter 81.350 of the Code of Federal Regulations. The area is bounded by the intersection of Capitol Drive with the Milwaukee River, south to the intersection of the Milwaukee River and St. Paul, west to the corner of St. Paul and 16th Street, south to the corner of 16th Street and Pierce, east to the corner of Pierce and 6th Street, and south to the corner of 6th Street and Becher Street. The entire nonattainment area is bounded on the east by Lake Michigan.

USEPA proposed on May 24, 1990 (55 FR 21390) to disapprove this redesignation request because Milwaukee County, Wisconsin did not have an adequate, fully approved SO2 SIP for the area at that time. USEPA has since approved in final the Wisconsin Statewide SO2 Rules. The final federal approval of these rules results in an adequate, fully approved SO2 SIP for the nonattainment portion of Milwaukee County. As a result, USEPA is approving the redesignation request in today's final rulemaking. A technical support document dated June 18, 1992, is available to provide a more detailed discussion of this action.

II. Review of State Submittals

A. Maintenance Plan

Section 107(d)(3)(E) of the amended Act stipulates that for an area to be redesignated from nonattainment to attainment the State must submit, in accordance with section 175A of the Act, a maintenance plan for any area that the State requests be redesignated. This plan must provide for maintenance of the standard for at least ten years from the anticipated date of redesignation. Eight years after the redesignation date, the State will be required to revise its SIP to provide for maintenance in the affected area for an additional ten year period. According to USEPA guidance as outlined in the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (57 FR 13498), the maintenance plan consists of three basic components: an emission inventory, a maintenance demonstration, and contingency measures. USEPA redesignation policy (as outlined in a September 4, 1992, memorandum from John Calcagni, Director, Air Quality Management Division to the Regional Air Division Directors) lists five core provisions that a plan must contain in order to ensure maintenance of the standards: an attainment inventory, a maintenance demonstration, a monitoring network, verification of continued attainment, and a contingency plan.

1. Attainment Inventory

As part of its maintenance plan, the State must develop an attainment emission inventory to identify the level of emissions in the area at the time of attainment. The plan submitted by WDNR details the allowable and 1985-1990 actual emissions from the three SO2 sources in the Milwaukee nonattainment area. This emission inventory was prepared in accordance with USEPA's guidance on inventories. Since the State has made an adequate demonstration that air quality has improved as a result of the SIP (as will be discussed in subsequent paragraphs), the attainment inventory for Milwaukee will be the actual inventory for 1990. This year had the highest total of SO2 emissions without an exceedance of the NAAQs: 14184.67 tons per year.

2. Maintenance Demonstration

According to USEPA redesignation policy, a State may generally demonstrate maintenance of the NAAQS by either showing that (1) future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or (2) by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. The Milwaukee plan demonstrates attainment by using the first approach. WDNR provided assurance in its plan that the source responsible for over 90 percent of the emissions in the Milwaukee nonattainment area (Wisconsin Electric Power Company -- Valley Generating Station) will not increase its SO2 emissions beyond the attainment inventory. As such, the State is not expecting significant growth in SO2 in the ten years of the maintenance plan.

3. Monitoring Network

Once an area has been redesignated, the State should continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR Part 58, to verify the attainment status of the area. The maintenance plan for Milwaukee contains provisions for continued operation of air quality monitors that will provide such verification. WDNR operates two State and Local monitoring system (SLAMS) SO2 monitors in the Milwaukee area and has committed to continued operation of these sites.

4. Verification of Continued Attainment

Each State should ensure in its maintenance plan that it has the legal authority to implement and enforce all measures necessary to attain and to maintain the NAAQS. One such measure is the acquisition of ambient and source emission data to demonstrate attainment and maintenance. USEPA redesignation policy requires the State to indicate in its maintenance plan how the attainment status of the area will be tracked. The Milwaukee plan relies on WDNR's authority under a number of State rules to require the annual reporting of emissions information. The State pledged to track the progress of the Milwaukee SIP every year through the updating of the emissions inventory. WDNR also has the ability under its new source permitting program to account for changes in the area's total emissions that arise from new SO2 sources that locate in the Milwaukee Area.

5. Contingency Plan

Section 175A of the Act requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. Unlike their counterparts required by section 172(c)(9), the maintenance plan's contingency measures are not required to take effect without further action from the State or USEPA. In the plan submitted by WDNR, the State will rely upon its authority under State law to promptly correct any violation of the NAAQS. Upon determining source culpability, the State will either: (1) Enforce the emission limit violation(s) that caused the exceedance of the NAAQS or (2) prepare administrative orders and/or a revision of the existing State Implementation Plan if the existing SIP was insufficient to attain the standards. As noted in the General Preamble, for SO2 programs, USEPA interprets "contingency measures" to mean that the State agency has a comprehensive program to identify sources of violations of the SO2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement, including expedited procedures for establishing enforceable consent agreements pending the adoption of revised SIPs. Therefore, USEPA has determined that the maintenance plan's contingency provisions, as well as the plan itself, are adequate to ensure the SO2 standards in Milwaukee.

B. Redesignation Request

According to section 107(d)(3)(E) of the Clean Air Act, 42 U.S.C.A. 7407, as amended by the Clean Air Act Amendments of 1990, (West 1983 & Supp. 1991) (CAA), USEPA may not promulgate a redesignation of a nonattainment area to attainment unless the following five conditions are satisfied:

(1) The Administrator has determined that the area has attained the NAAQS;

(2) The Administrator has fully approved the applicable implementation plan for the area under section 110(k);

(3) The Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(4) The Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and

(5) The State containing such area has met all requirements applicable to the area under section 110 and part D of the CAA.

The Wisconsin redesignation request for the Milwaukee sub-city nonattainment area meets the five requirements of section 107(d)(3)(E). The following is a description of how the State's request has fulfilled each of these CAA requirements.

1. Attainment of the SO2 NAAQS

The nonattainment designation for the Milwaukee area was based on, in total, six violations of the 24-hour primary SO2 standard between 1977 and 1979. The highest 24-hour concentration recorded was 608 micrograms per cubic meter. Monitoring data submitted by the WDNR show that there have been no monitored violations of the ambient SO2 standards in the Milwaukee area since 1979. USEPA redesignation policy requires that at least eight consecutive quarters with no violations be achieved before an area can be redesignated to attainment. The ambient data in Milwaukee support the redesignation of this area.

Along with the redesignation request, a dispersion modeling analysis was submitted that shows that the primary and secondary SO2 NAAQS will not be violated with all facilities in the area operating at the SIP-allowable limits that were approved in 1989. The State's modeling analysis which showed attainment of the NAAQS at the SIP limits used the RAM model and was conducted in accordance with USEPA modeling guidance. The modeling analysis assumed maximum potential emissions from 69 SO2 sources in Milwaukee.

2. Fully Approved SIP

Upon notification of the original nonattainment designation, WDNR developed a strategy to ensure attainment of the SO2 standard in Milwaukee by December 31, 1987. This revision to the Wisconsin SIP was submitted to USEPA on January 23, 1984, and was approved in final by USEPA on September 6, 1989. The SIP revision consisted of regulations (NR 418.04, Wisconsin Administrative Code) that were effective in Milwaukee as of November 9, 1985.

The Milwaukee SO2 reasonably available control technology (RACT) rules (NR 418.04) focused on setting emission limitations for a large electric utility source in Milwaukee that had been responsible, in part, for the ambient air quality violations. Meanwhile, on April 26, 1984, USEPA notified the Governor of Wisconsin that the Wisconsin SO2 SIP was inadequate to ensure protection of the primary and secondary NAAQS. WDNR responded to this notice of SIP deficiency with numerous rules and Administrative Orders as a revision to its Statewide SIP. WDNR submitted an Administrative Order for the University of Wisconsin-Milwaukee (UWM) to USEPA as a source-specific SIP revision to the Wisconsin SIP on October 2, 1986. USEPA proposed to disapprove WDNR's redesignation request on May 24, 1990, because this source-specific SIP revision had been included as part of Wisconsin's Statewide SO2 Rules SIP revision package, which had not yet undergone final rulemaking. For that reason, an adequate, fully approved SIP had not been in place for the Milwaukee County nonattainment area prior to the approval of the Statewide SO2 Rules.

The May 24, 1990, notice of proposed rulemaking noted that if USEPA ultimately approved Wisconsin's Statewide SO2 Rules, the State might wish to request again the redesignation of the county to attainment based upon the redesignation criteria applicable at that time. Rather than doing so, WDNR elected to request USEPA to withhold the final rulemaking on this redesignation until the Statewide SIP revision had undergone final rulemaking. In that notice, USEPA is approving the source-specific SIP revision for UWM. As a result of the final rulemaking on the Statewide rules, an adequate fully approved SIP is now in place in Milwaukee County and the redesignation request can be approved.

3. Air Quality Improvement From Permanent and Enforceable Emissions Reductions

USEPA approved the control strategies contained within Wisconsin's SIP revisions for the Milwaukee SO2 nonattainment area on September 6, 1989 (54 FR 36965), and also in the final rulemaking on Wisconsin's Statewide SO2 Rules. Thus, the emission reductions achieved as a result of those rules are federally enforceable. Additionally, the regulations have no expiration date and are therefore permanent.

4. A Fully Approved Maintenance Plan

WDNR submitted a maintenance plan for the Milwaukee SO2 nonattainment area on June 12, 1992. This maintenance plan satisfies the requirements of section 175A of the CAA, 42 U.S.C.A. 7505(a), as was discussed in section 2a of this notice and reviewed below.

Section 175A provides that a maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the area is redesignated. Section 175A also requires that each maintenance plan contain contingency provisions necessary to assure that the State will promptly correct any violation of the NAAQS which may occur after redesignation of the area to attainment.

The maintenance plan submitted by WDNR contains an attainment emissions inventory which identifies the level of emissions in the Milwaukee nonattainment area at the time of attainment. The submitted plan lists the actual emissions of the three significant sources of SO2 in the Milwaukee nonattainment area for 1985 to 1990. The plan compared these emissions to the allowable emissions for each facility according to the SIP. The actual emissions were at most, in any of the six years, only 30 percent of the allowable emissions. The plan then demonstrates maintenance of the NAAQS by showing that the future emissions of SO2 will not exceed the level of the attainment inventory. This demonstration required the State to project emissions for the 10-year period following redesignation. Wisconsin's plan projects that the emissions will not change substantially from the attainment inventory within the next ten years. The Milwaukee maintenance plan also indicates that the State will track the progress of the plan by compiling a yearly emission inventory of SO2 in Milwaukee and comparing the level of emissions to that of the attainment inventory and that allowed in the SIP.

The plan also requires that ambient air quality monitoring continue to operate in the area after redesignation to attainment. The monitoring in Milwaukee conforms to USEPA's SLAMS requirements. WDNR committed in its maintenance plan to continue operation of its monitoring program in Milwaukee for the next ten years.

In terms of contingency provisions, the maintenance plan notes that WDNR has the authority in its State's statutes to enforce against ambient and emission limit violations. The State's new source review program will ensure that new emissions sources are considered and that air quality modeling will be performed to determine air quality impacts in Milwaukee for any major modifications to SO2 facilities or new SO2 sources.

As discussed above, the maintenance plan submitted by WDNR as part of the redesignation request for the Milwaukee primary sulfur dioxide nonattainment area satisfies the USEPA requirements for such plans in its existing SIP requirements for monitoring, emission inventories, and new source review.

5. SIP Meets Relevant Requirements Under Section 110 and Part D of the CAA

a. Section 110 Requirements: USEPA approved in 1992 a revision to Wisconsin's sulfur dioxide SIP for one source in the Milwaukee SO2 nonattainment area (University of Wisconsin at Milwaukee) as the revision was determined to meet the requirements of section 110(a)(2) of the CAA, as amended. For more information regarding Wisconsin's Statewide SO2 SIP, the reader is referred to the technical support documents associated with the notices of proposed and final rulemaking for the Wisconsin Statewide SO2 Rules.

As noted above, USEPA approved the Milwaukee SIP on September 6, 1989, after having concluded that the plan satisfied CAA requirements. However, the Clean Air Amendments of 1990 modified several of the section 110 requirements to which the 1989 SIP revision was subject. USEPA has reviewed the existing Milwaukee SIP for conformance with the provisions of the Clean Air Act Amendments enacted on November 15, 1990. The Agency has determined that the existing plan does conform with the new requirements irrespective of the fact that the submittal preceded the date of enactment of the amendments to section 110. That is, the Wisconsin plan: includes enforceable emission limitations with schedules and timetables for compliance, provides for the operation of air quality monitors, and includes a program to provide for the enforcement of the emission limits.

b. Part D Requirements: Similarly, both the Statewide SO2 SIP and the existing Milwaukee SIP meet the requirements of Part D of the CAA, including section 172(c), 42 U.S.C.A. 7502(c). This is, the Wisconsin plan: Provides for the implementation of all reasonably available control measures as expeditiously as practicable, provides for reasonable further progress towards attainment, includes an inventory of actual emissions from all sources in the nonattainment area, requires permits for the construction and operation of new and modified major stationary sources in the area, and includes sufficient contingency measures.

As discussed above, the request submitted by the WDNR to redesignate the Milwaukee primary sulfur dioxide nonattainment area to attainment satisfies the requirements for such redesignations as outlined in section 107(d)(3) of the CAA. Therefore, USEPA is approving this redesignation request in today's Federal Register.

III. Conclusion

Final Action

The United States Environmental Protection Agency (USEPA) received a request from the Wisconsin Department of Natural Resources (WDNR) on May 12, 1986, to redesignate a portion of Milwaukee County from primary nonattainment to attainment of the sulfur dioxide national ambient air quality standards (NAAQS). This redesignation request has been reviewed and USEPA's comments on the plan's provisions are detailed in the technical support document for this action. Based on the technical review of the redesignation request, USEPA, pursuant to this notice, is approving the Milwaukee maintenance plan SIP revision and is redesignating this portion of Milwaukee County to attainment. Further, this redesignation is being processed as a direct final due to its expected noncontroversial nature.

Because USEPA considers today's action noncontroversial and routine, we are approving it today without prior proposal. The action will become effective on July 23, 1993. However, if we receive notice by June 23, 1993 that someone wishes to submit critical comments, then USEPA will publish: (1) A notice that withdraws the action, and (2) a notice that begins a new rulemaking by proposing the action and establishing a comment period.

Under 5 U.S.C. 605(b), the Administrator has certified that redesignations do not have a significant economic impact on a substantial number of small entities (See 46 FR 8709).

The Agency has reviewed this request for revision of the federally approved State Implementation Plan for conformance with the provisions of the 1990 Amendments enacted on November 15, 1990. The Agency has determined that this action conforms with those requirements.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 1993. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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

Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

Dated: October 9, 1992.

Valdas V. Adamkus, Regional Administrator.

Note: This document was received at the Office of the Federal Register on May 13, 1993.

40 CFR parts 52 and 81 are amended as follows:


1. The authority citation for part 52 continues to read as follows:

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

Subpart YY -- Wisconsin

2. Section 52.2570 is amended by adding paragraph (c)(63)(ii)(B) to read as follows:

SS 52.2570 -- Identification of plan.

* * * * *

(c) * * *

(63) * * *

(ii) * * *

(B) On June 12, 1992, Wisconsin DNR submitted its SO2 maintenance plan for the City of Milwaukee, Milwaukee County.

* * * * *

3. Section 52.2575 is amended by adding paragraph (b)(2) to read as follows:

SS 52.2575 -- Control strategy: sulfur dioxide.

* * * * *

(b) * * *

(2) An SO2 maintenance plan was submitted by the State of Wisconsin on June 12, 1992, for the City of Milwaukee, Milwaukee County.


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

Authority: 42 U.S.C. 7401-7642.

2. Section 81.350 is amended in the attainment status designation table for SO2 under AQCR 239 by revising the entry for Milwaukee County to read as follows:

SS 81.350 -- Wisconsin.

* * * * *

Wisconsin -- SO2 

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

*     *     *     *     *     *     * 
AQCR 239: 
Milwaukee                                    X 
*     *     *     *     *     *     * 
* * * * * 

[FR Doc. 93-11699 Filed 5-21-93; 8:45 am]