Wisconsin Manufacturers and Commerce is asking the U.S. Environmental Protection Agency to reconsider a December decision that found Sheboygan County did not meet certain ozone standards.
The EPA designated Sheboygan County in December as being in moderate nonattainment of the 2008 Ozone National Ambient Air Quality Standards. The agency also gave Wisconsin until January 1 to submit revisions to its state implementation plan, which the state did not do.
The designation would, among other things, increase the offset ratio for new pollutant emissions from 1.1 to 1.15, which WMC’s Lucas Vebber would limit the potential for growth in the county.
“Every time you want to grow, somebody else has to be shrinking,” said Vebber, WMC general counsel and director of environmental and energy policy.
WMC, the Wisconsin Department of Natural Resources and Sheboygan County businesses have argued the EPA’s decision is based on flawed monitoring data. The agency uses data from a monitor located at Kohler-Andrae State Park along Lake Michigan. Opponents of the EPA decision say that monitor picks up pollution from other areas including Chicago, Indiana and Milwaukee.
“You could shut off every single source in Sheboygan County, and that monitor would still read non-attainment,” Vebber said.
The EPA acknowledges the role interstate transport of pollution on downwind areas meeting standards, but said it had a “mandatory duty to make determinations of attainment or failure to attain … regardless of the nature or effect of transported emissions on monitored air quality data in a given nonattainment area.”
WMC and other groups point to another monitor installed in 2014 about six miles northwest of the city of Sheboygan near Haven. Data from the new monitor is within the 2008 standard, but the required three years of data was not available until after EPA’s decision.
WMC and others raised these issues in comments submitted to the EPA before the final decision was made. The EPA issued responses to the comments, noting that even if the Haven monitor had certifiable data, the county would still not be in attainment because of the readings at Kohler-Andrae.
The opponents argue the Kohler-Andrae monitor doesn’t capture the downwind pollutants from the Sheboygan area and doesn’t meet guidelines for monitor locations.
“The Kohler Andrae monitor was not placed to monitor the maximum downwind impacts from the urbanized portion of the Sheboygan area, but to capture maximum downwind impacts from several urban areas along Lake Michigan, including Milwaukee, Wisconsin; Chicago, Illinois; and Gary, Indiana,” the EPA response says. “The fact that the Kohler Andrae site is monitoring the highest ozone concentrations in Wisconsin supports the appropriateness of its selection as a maximum downwind site.”
The EPA’s December decision allowed that data from the Haven monitor could be used for future nonattainment decisions, but declined to include it for the 2008 standard.
Vebber said at this point the petition for reconsideration is just an administrative action, but more legal steps could be taken in the future. In announcing the petition, WMC noted it was filed just after Scott Pruit was confirmed as the agency’s new administrator.
“I think the hope is that under the new administration we have more common sense,” Vebber said.
He also said the Sheboygan County case could foreshadow future legal battles along the Lake Michigan coastline. He noted the EPA is in the process of transitioning to the 2015 ozone standards which drop attainment levels from 0.075 parts per million to 0.070 ppm. The shift would put counties from Kenosha to Door in nonattainment, he said.
“The primary reason for most of it is the location of the air monitors,” he said.
