EPA dramatically narrows areas of Wisconsin that will face tougher regulations for smog

The U.S. Environmental Protection Agency has sided with Wisconsin officials by sharply limiting areas that will come under stricter federal ozone regulations to small strips of land along Lake Michigan.

The agency's decision announced Tuesday is a big win for business interests and the administration of Republican Gov. Scott Walker, who argued that metropolitan Milwaukee and areas along Lake Michigan were being polluted by smog, or ozone, from Illinois and northern Indiana.

The decision effectively shrinks the footprint of eastern Wisconsin that would need to take steps to reduce smog levels, but keeps intact long-standing clean-air mandates for the region, such as reformulated gasoline.

For months, environmental groups have said the new regulations advanced under former President Barack Obama would save money by reducing health care costs such asthma attacks and heart attacks on days of elevated smog.

But many Republicans and industrial groups said the new regulations and blanket coverage across much of southeast Wisconsin was an example of government overreach and would hurt the economy. They pressed for a Wisconsin exemption.

In the end, the EPA determined that small parts of Milwaukee, Ozaukee, Sheboygan, Manitowoc, Door and Kenosha counties along the lake were in violation of a new tougher ozone standard approved in 2015.

For example, the area affected in Milwaukee County would cover an area ranging from Klode Park in Whitefish Bay on the east and south to Ozaukee County on the north to Green Bay Road on the west. The reason: An air monitor in Bayside has historically reported higher ozone readings than the rest of the county.

Racine County — the future home of the Foxconn Technology Group plant — was declared in compliance with the new standard.

The EPA also exempted Waukesha and Washington counties.

The agency was under a court-ordered deadline of Monday to decide which counties across the country were in violation and would thus need to take potentially costly steps to reduce pollutants that form ozone.

Tuesday's announcement was a shift from the EPA's stance in December when it determined a much broader area of southeastern Wisconsin failed to meet ozone standards.

At that time, the EPA declared Milwaukee, Waukesha, Ozaukee, Washington and Racine counties in violation. The same was true for northern Door County and Kenosha County east of I-94. The EPA also found that areas near the shoreline of Sheboygan and Manitowoc counties in violation.

The rules lower the national standard for ozone from 75 parts per billion to 70 parts per billion, based on daily results of air monitors that are averaged over a rolling three-year period.

The EPA's action won’t change the requirement that reformulated gas will still be required at the pumps, says the state Department of Natural Resources. The gas, which is more expensive and has been required since 1995, is blended to burn cleaner than traditional gas to reduce smog-forming pollutants.

The pollutants forming ozone come from sources such as factories, power plants and emissions from cars and trucks.

Ozone is created when heat and light interact with nitrogen oxides and volatile organic compounds.

Higher levels of ozone can lead to reduced lung function for people working and exercising outdoors or those with respiratory problems like asthma.

In areas designated as not meeting the ozone standard, new requirements could be placed on new or expanding industries to install top-performing pollution controls regardless of cost. Another option: Buy emissions credits from another company that previously made reductions to lower the overall impact on ozone.

The EPA's action comes as Foxconn prepares to break ground on its $10 billion manufacturing plant in Mount Pleasant in Racine County. The company says that it could employ up to 13,000 workers, but documents also show that its manufacturing process would represent a major new source of air pollution in the region.

DNR officials have said they do not believe Foxconn would be subject to stricter limits, even under the new regulations, because Racine County meets current ozone requirements.

The DNR approved air permits for the company last week — before the new regulations take effect in the next 60 days.

Racine County's air quality status is complicated by a state decision to change the site of an air monitor in 2013, EPA documents show. That meant it lacked three years of the required air monitoring data from, 2014 to 2016, to assign the county its own ozone score.

But "it is worth noting," the EPA said, that if results from a new monitor were used from 2015, 2016 and from preliminary figures in 2017, the county would not have met ozone requirements in two of three years.

The EPA decision to exempt Racine, as well as Waukesha and Washington counties, "really stands out," said Dona Wininsky of the American Lung Association in Wisconsin.

"It's pretty clear that the state asked the EPA to go with that."

Under Walker, DNR officials pushed back against the EPA's initial determination that a far larger area of the southeastern Wisconsin should come under stricter ozone regulations. Officials asked that the entire state be declared in compliance. Falling short of that, they urged the EPA to designate narrow strips of land near the Lake Michigan shoreline.

In February, the agency argued that meteorological and air emissions data point to Illinois and Indiana as largely responsible for pollutants that push up along the lakefront and trigger higher levels of smog in summer.

It cited data showing that 81% of all nitrogen oxides and 79% of all VOCs in the southern and western sections of the Lake Michigan area come from the Chicago area.

In a statement, DNR spokesman Jim Dick said ozone levels dropped sharply over the past two decades.

"We are pleased that EPA did take into account the science and data the DNR provided showing that ozone concentrations ... are limited to a narrow strip of land near the Lake Michigan lake shore," Dick said.

"Maybe if air pollution stayed in nice little places, that would work," said Wininsky of the Lung Association. "But these narrow designations don't really take into account the people who live in these areas, or nearby."

Lucas Vebber, general counsel for Wisconsin Manufacturers & Commerce, disagreed and said there was little Wisconsin could do to lower ozone levels more.

"This is a major step forward," he said in an email. "Compared to what was proposed in December, significantly fewer Wisconsinites will be subject to the onerous regulatory burden imposed by a non-attainment designation."

In a related matter, the EPA said former DNR Secretary Cathy Stepp played no role in the decision.

A Walker appointee, she left the DNR to join the EPA and became regional administrator of the agency in Chicago in December. The EPA said Stepp recused herself because she had advocated against the stricter regulations for Wisconsin.