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Redesignation of Non-Attainment Area Would Mean People and Businesses Breathe Easier

Summer 1995

Ever since the Clean Air Act Amendments of 1990, Southeastern Wisconsin — consisting of Milwaukee, Racine, Kenosha, Waukesha, Ozaukee, and Washington counties — has been designated as a severe ozone nonattainment area. As a result of the designation, existing and new stationary sources of volatile organic compounds ("VOC") and nitrogen oxides ("NOx") are subject to a wide array of regulations. Consider the requirements applicable to new sources in the area: any new source with the potential to emit 25 or more tons per year ("TPY") of VOCs or NOx must offset its projected emissions with emission reductions from other sources. Offsets must be secured at a 1.3 to 1 ratio. New sources must also apply the Lowest Achievable Emissions Rate ("LAER") to limit emissions of VOCs and NOx. The offset and LAER requirements are among the most stringent found in the regulations.

Due to the strict requirements applicable to sources in southeastern Wisconsin, it is worth considering prospects for redesignation of the area to ozone attainment. Redesignation would not put an end to all limitations on air emissions, but redesignation would result in relaxation of some of the current burdens on stationary sources.

The Clean Air Act sets the stage for redesignation of southeastern Wisconsin. Pursuant to the Act, the EPA is authorized to act on a state’s petition to redesignate an area from nonattainment to attainment. EPA must respond to a petition within 18 months of submittal, but can only approve a petition if certain conditions are met:

- The Administrator has determined that the National Ambient Air Quality Standard ("NAAQS") has been attained;
- The Administrator has fully approved the applicable implementation plan;
- The Administrator has determined that the improvement in air quality is due to permanent and enforceable reductions;
- The Administrator has approved a maintenance plan for the area; and
- The state has met all applicable requirements for the area under sec. 110 and Part D of the Clean Air Act.

Thus, redesignation of southeastern Wisconsin would depend upon, among other requirements, a showing that the ozone NAAQS has been attained. Attainment of the ozone standard is measured by a statistical average approach. That is, attainment of the NAAQS can be demonstrated if there have not been more than 3 exceedances of the NAAQS over a 3-year period.

Aside from demonstration of attainment, another key element of redesignation is EPA approval of a maintenance plan. The maintenance plan is to ensure that the area will not revert to nonattainment and must provide for maintenance of the ozone NAAQS for at least 10 years after the anticipated redesignation date. Eight years after the redesignation date, the state must revise the plan to provide maintenance of the area for a second 10-year period. The Clean Air Act stipulates that the maintenance plan contain, at a minimum, a commitment for the implementation of all measures that were part of the control strategy (i.e., the State Implementation Plan) for the area prior to redesignation should violations of the NAAQS occur in the future. Importantly, this implies that the state could submit a SIP revision at the time of the redesig-nation request to remove or reduce the stringency of certain control measures after redesignation occurs.

In light of the maintenance requirements, redesignation would not signal full withdrawal of limitations on air emissions. Redesignation of southeastern Wisconsin would, however, reduce the number of sources currently subject to regulation. Many regulations only apply to major sources. Upon redesignation the major source threshold for sources of VOC and NOx would climb from the potential to emit of 25 TPY to 100 TPY.

Equally important, the nonattainment new source review requirements would no longer apply, including the requirements to secure offsets and apply LAER. Redesignation, then, would renew opportunities for continued economic growth in the state.

Media Contact 

If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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