EPA Designates Part of Kenosha County as Nonattainment for Ozone

The EPA has revised its proposed designation for Kenosha County, and designated parts of the county nonattainment for the 2008 8-hour ozone standard.

While nonattainment designations carry with them substantial regulatory and related economic burdens, the EPA’s decision to designate only two Kenosha County townships, as opposed to six Wisconsin counties, as nonattainment is a welcome policy change.

Background

In 1997, EPA set the 8-hour ozone standard at 80 parts per billion (ppb). In 2008, EPA created a new 8-hour standard, lowering it from 80 ppb to 75 ppb. Soon after President Obama was sworn into office, the EPA announced it would reconsider the 2008 standard, and likely propose a new ozone standard in a range of 60 to 70 ppb. Under pressure from industries suffering in the bad economy, President Obama asked the EPA to withdraw its proposed ozone standard revision on September 2, 2011.

After the President withdrew the 2010 reconsideration, the EPA released a memo announcing that it would begin implementing the 2008 8-hour ozone standard. On December 9th, 2011 the EPA notified states of its proposed determinations, and Sheboygan County, Wisconsin was the only Wisconsin area listed as proposed nonattainment. However, the EPA indicated at that time that it would be reevaluating its designation of Kenosha County as attainment based on 2011 air quality data submitted by Illinois two days before the EPA announced its proposed designations.

The 2011 ozone data from Illinois indicated a violation of the 2008 ozone standard at the Zion monitor in Lake County, Illinois, which is part of the Combined Statistical Area (CSA) that includes Chicago and Kenosha County, Wisconsin. (The 2011 data and subsequent nonattainment designation will allow Illinois to receive additional Federal Highway Administration Congestion Mitigation and Air Quality Improvement funds.)

Because the data indicated an ozone level violation, the EPA announced on January 31, 2012 that intended to designate the Chicago-Naperville, Illinois-Indiana-Wisconsin area as nonattainment, with boundaries that include: Kenosha County in Wisconsin; Lake, Porter, and Jasper Counties in Indiana; and several counties in Illinois.

Kenosha County successfully opted out of being part of the Chicago nonattainment area some time ago. So, for over 20 years, the DNR and the EPA would use a single monitor designed to assess upwind, out-of-state compliance, as a basis to determine whether Wisconsin met the 8-hour ozone standard. This monitor is located in Kenosha County, within the Chiwaukee Prairie Nature Preserve, just on the Wisconsin side of the Illinois border. In essence, this Illinois (Chiwaukee) monitor was repeatedly used to not only designate as nonattainment Kenosha County, but an entire six-county ozone area that included Waukesha, Washington, Milwaukee, Ozaukee, Racine, and Kenosha counties. For the 2008 standard, Kenosha has been broken off from the other counties, which were designated attainment.

The technical support document for the EPA’s nonattainment proposal notes that the VOC and NOx emissions in Kenosha County, precursors to ozone pollution, are relatively low and similar to those for counties recommended for exclusion from the intended ozone nonattainment area. In addition, Illinois’ and Wisconsin’s wind direction analyses for high ozone days indicate that Kenosha County emissions are probably downwind of the violating Zion, IL monitor on high ozone days. These conclusions would support the exclusion of Kenosha County from the intended ozone nonattainment area.

However, the EPA thinks that it is appropriate to include Kenosha County in the Chicago nonattainment area now because historically the Chiwaukee Prairie monitoring site in Kenosha County has been the high downwind monitoring site for the Chicago region. The Chiwaukee Prairie ozone design value was used to establish the classification for the Chicago-Gary-Lake County, IL-IN ozone nonattainment area under both the 1997 8-hour ozone standard and the 1-hour ozone standard. In addition, monitoring data from this monitoring site was historically used by the States of Illinois, Indiana, and Wisconsin in conjunction with modeled ozone concentrations to demonstrate that emission reductions in the Chicago area were sufficient to attain the 1-hour ozone standard and the 1997 8-hour ozone standard.

Designation

The EPA noted in its designation proposal that if the State of Wisconsin could submit certified data for 2009-2011 within the 120 day period it had to respond to the designation letter, showing that Kenosha County is actually attaining the 2008 8-hour ozone standard, the EPA’s conclusion regarding the designation for Kenosha County could be revisited.

The state submitted substantial comments (DNR Comments, Gov. Walker Comments) supporting its position that Kenosha County be wholly, or in the alternative, partially designated attainment, and on May 1, 2012, Wisconsin submitted certified air quality data for 2011. Unfortunately, that 2009-2011 data indicates that there is a violation at the Chiwaukee Prairie monitoring site. Because Wisconsin did not certify the 2011 ozone data by February 29, 2012, the EPA did not have sufficient time to consider this information for purposes of designating Kenosha County nonattainment as a violating area. However, the EPA did take note of this new information in its consideration of whether to include all or part of Kenosha County as part of the designated Chicago nonattainment area.

The EPA determined in its final technical support document that Indiana’s analysis of Illinois’ Zion monitor data, and the 2009-2011 violation at the Chiwaukee Prairie monitor, supports the conclusion that the two easternmost townships in Kenosha County be designated nonattainment. The EPA estimates that these two lakeshore townships, Somers and Pleasant Prairie, contain approximately 77 percent of Kenosha County’s population, 91 percent of its NOX emissions, and 86 percent of its VOC emissions.

Future Action

The EPA is currently working to review the science needed to inform the next five-year review of the ozone standards and currently expects to propose action in 2013.

Although the 2008 standard is now in effect and a new standard is on the horizon, Wisconsin is still awaiting the EPA’s final decision on its proposal to redesignate the Milwaukee-Racine and Sheboygan areas to attainment for the 1997 8-hour ozone standard. The Milwaukee-Racine area includes Milwaukee, Ozaukee, Racine, Washington, Waukesha, and Kenosha Counties. The Sheboygan area includes Sheboygan County. The counties were designated nonattainment in 2004 based on air quality monitoring data from 2001–2003.

Wisconsin first asked for a redesignation in 2007. That request was based on compliance in all six counties for the 2004-06 ozone seasons. Rather than act on that request, the EPA directed Wisconsin to develop an ozone compliance plan that shows how the state will meet the federal standard for ozone for those six counties. The premise of this rejection of Wisconsin’s request was 2007 monitoring data from the Chiwaukee monitor, which, as noted above, has historically been used to measure emissions from the Chicago area.

The current redesignation request was submitted by the DNR and Gov. Doyle on September 11, 2009, and supplemented on November 16, 2011 by the DNR and Gov. Walker. The request is based on data for the 2008–2010 time period indicating the 1997 8-hour ozone standard has been attained.

This proposed approval also involves several related actions. The EPA is proposing to approve, as revisions to the Wisconsin State Implementation Plan (SIP), the state’s plans for maintaining the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard) through 2022 in the above-mentioned areas. The EPA is also proposing to approve the 2005 comprehensive emissions inventories for the Milwaukee-Racine and Sheboygan areas as meeting the requirements of the CAA. Finally, The EPA finds adequate and is proposing to approve the state’s 2015 and 2022 Motor Vehicle Emission Budgets (MVEBs) for the Milwaukee-Racine and Sheboygan areas.

Additional information about the 1997 and 2008 8-Hour Ozone standards is available on the Great Lakes Legal Foundation Regulatory Watch website.

This post was authored by Great Lakes Legal Foundation staff attorney Emily Kelchen.