Regulatory Developments, Special Topics in Environmental Management

Milwaukee Area Dodges Ozone Nonattainment

On April 30, 2018, the EPA issued a rule with final designations under the Clean Air Act’s (CAA) National Ambient Air Quality Standards (NAAQS) for ozone for almost all U.S. counties not previously designated.
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The exceptions are eight counties in the San Antonio area; the Agency says it will complete designations for these counties by July 17, 2018. As with many major CAA actions taken by the Agency, this one comes with controversy. Here, critics asserted that EPA’s decision to reverse an earlier statement that the Milwaukee, Wisconsin, area would be found in nonattainment with the NAAQS was a political decision. The attainment designation for the area is conducive to construction of a large manufacturing facility in Racine County, which has been heralded by President Donald Trump.

EPA Delayed Designations

The October 1, 2015, ozone NAAQS revisions lowered the 2008 8-hour primary and secondary standards of 0.075 parts per million (ppm) to 0.070 ppm. The CAA requires that not later than 1 year after promulgation of a new or revised NAAQS, the governor of each state must submit to the EPA administrator a list designating all areas of that state as nonattainment, attainment, or unclassifiable under that NAAQS. Furthermore, the CAA provides that upon promulgation or revision of an NAAQS, the administrator must promulgate the designations of all areas (or portions thereof) as expeditiously as practicable but in no case later than 2 years from the date of promulgation of the new or revised NAAQS. Such period may be extended for up to 1 year only when the administrator has insufficient information to promulgate the designations. Regarding the San Antonio area, the governor of Texas has argued that any nonattainment designation be postponed until more data on the impact of international pollution are available.

Court Issues Deadlines

On November 6, 2017, the EPA designated as attainment/unclassifiable 2,646 counties—85 percent of all counties in the United States—for which the states recommended a designation of attainment or attainment/unclassifiable. After the EPA failed to meet the deadline for issuing designations for the remaining counties, environmental groups and some states sued. In February 2018, the U.S. District Court for the Northern District of California ordered the Agency to promulgate final designations for all areas of the country, except for the eight undesignated counties composing the San Antonio area, no later than April 30, 2018, and to promulgate final designations for the San Antonio area by July 17, 2018.

51 Areas in Nonattainment

The final rule contains the following:

  • Nonattainment designations for 51 areas in 22 states and the District of Columbia,
  • Unclassifiable designation because of insufficient monitoring data for one area, and
  • Attainment/unclassifiable designations (i.e., meeting the standard and not contributing to a violation of the standard) for all remaining areas.

Foxconn’s Facility

In July 2017, Foxconn, a Chinese electronics manufacturer, announced that it would invest $10 billion to build a facility in Mt. Pleasant, Racine County. According to the company, the plant would eventually employ up to 13,000 workers. The move received the support of Trump, Wisconsin Governor Scott Walker, and Rep. Paul Ryan, speaker of the U.S. House of Representatives, who also represents the Racine area.

But in December 2017, the EPA informed Walker that it intended to designate the whole Milwaukee area, which includes Racine County, as nonattainment with the 2015 ozone NAAQS. Construction of a new major pollution source in a nonattainment area requires compliance with EPA’s lowest achievable emission rate (LAER), which can require billions of dollars of additional investment for a very large facility. The Wisconsin Department of Natural Resources argued that the actual area of nonattainment was a small portion of the Milwaukee area, a narrow strip along Lake Michigan. The EPA said it agreed and limited the nonattainment designation to that area, which, potentially, will loosen the air pollution control requirements the projected Foxconn facility will need to meet.

EPA’s final rule is here.