Posted on May 17, 2018 by Linda Benfield
Southeast Wisconsin’s continued relief from nonattainment rules is not assured yet. And did we mention we are about to build a large new factory just over the Illinois border?
Southeast Wisconsin labored under some form of ozone nonattainment status for 20 years – but in July 2012 the area was declared to be in compliance with the then-applicable 8 hour ozone standard. The region has enjoyed five years of relief from the enhanced permitting, emission offsets, and other restrictions on expansion that come with Nonattainment New Source Review.
That glorious period appeared to be coming to a close when, on December 20, 2017, EPA informed Governor Walker that the proposed nonattainment areas for the more restrictive 2015 ozone standard would include all of five southeastern Wisconsin counties, and parts of four other counties bordering Lake Michigan. The Walker administration and the business community were not pleased.
In public comments filed with EPA, the State of Wisconsin and every major business group for the state and affected counties pushed back on EPA’s policy decision, with arguments based heavily on the scientific data collected during the past 20 years. Commenters emphasized that the air quality and meteorological data does not support including the entire geographic boundaries of all of the counties, there is a seasonal component to the nonattainment data, and as the state has emphasized for years in nearly every context involving air emissions, most of the ozone impacting southeast Wisconsin is transported from outside Wisconsin, including from our neighbor to the south – Illinois.
EPA listened, and on May 1, 2018, released a substantially pared down final list of counties designated as nonattainment for ozone –the list only includes the lakeshore areas of six counties. Notably, because of gaps in the certified data, Racine County, which will be home to a new $10 billion development by Foxconn Technology Group, will not be included in the nonattainment area. Foxconn and its affiliated vendors will manufacture liquid crystal display screens at the Racine location, which was chosen over other contenders, including sites in Illinois.
Stirring up trouble in our Midwest neighborhood, on Friday, May 4, 2018, Illinois Attorney General Lisa Madigan announced that she will file suit in the D.C. Circuit challenging the ozone designations. Her announcement ties the designations to the Foxconn development and complains that EPA’s action puts “a company’s profit ahead of our natural resources and the public’s health.”
The new designations have not yet been published in the Federal Register, but this neighborhood dispute may be headed to court. Responding to Ms. Madigan’s press release, Governor Walker said “The State of Wisconsin will push back.” If Illinois wants to pick a fight, Wisconsin could consider a counter claim, or its own suit against Illinois under Section 126 of the Clean Air Act, which allows downwind states to pursue out of state upwind emission sources. Ozone monitors in southeastern Kenosha County have shown for years that emissions from Illinois are the primary source of nonattainment on the Wisconsin side of the border.