Wisconsin wants break from Trump administration on ozone rules in advance of Foxconn development

Despite evidence that southeast Wisconsin is violating new and tougher emissions standards for smog, state officials are asking the Trump administration to set aside a recent federal finding and conclude the state is complying with the law.

Falling short of that, the state Department of Natural Resources is recommending federal officials carve out narrow strips of land of a few miles along the Lake Michigan shoreline as violating the new standard for ozone pollution and declare the rest of the state in compliance.

The state’s request to the U.S. Environmental Protection would weaken the impact of stricter regulations on factories and other large sources of air pollution — including Racine County where Foxconn Technology Group is planning to build a giant manufacturing campus.

To justify their request, DNR officials are arguing that meteorological and air emissions data show that Illinois and Indiana are primarily responsible for pollution that blows north along the lake and creates smog.

But environmental groups say the claim ignores Wisconsin’s own contribution of ozone pollution.

If the Trump administration sides with Gov. Scott Walker and other state officials, it could benefit Foxconn and comes after Wisconsin promised environmental exemptions for the company as part of a state and local financial incentive package totaling $4 billion.

Regardless of the outcome, motorists in southeastern Wisconsin will still be required to buy reformulated gasoline, said Gail Good, director of air management for the DNR. Reformulated gas, which is more expensive, has been sold in the Milwaukee area since 1995 and is a tool regulators use to reduce smog.

Ozone is a summer pollutant and is created when heat and light interact with nitrogen oxides and volatile organic compounds. The pollutants come from sources such as factories, power plants and emissions from cars and trucks.

Depending on how the EPA responds, the outcome could have far-reaching health and economic impacts for counties stretching from Kenosha to Door. An EPA spokeswoman said the agency is evaluating Wisconsin's proposal.

Higher levels of ground-level ozone can lead to reduced lung function for people working and exercising outdoors or those with respiratory problems like asthma. The stricter regulations would help to lower ozone levels in the region and were advanced after a five-year scientific review.

If the EPA declares all or parts of nine Wisconsin counties as violating the stricter ozone standard, factories could face higher costs, especially new or expanding plants that would be required to purchase top-of-the-line pollution controls regardless of cost and make other changes to their operations.

“EPA’s intended designations threaten Wisconsin’s economic engine and could result in severe and unnecessary economic consequences,” DNR Secretary Daniel L. Meyer said in a letter to the EPA on Feb. 28.

The ozone rules have taken on a political dynamic because of the potential impact on Foxconn and future development near the plant and because the rules were advanced in 2015 under the Obama administration.

Wisconsin and other like-minded states filed a lawsuit against the rules in 2016, arguing the stiffer ozone limits failed to take pollution into account that was outside a state’s control.

Also, an EPA spokeswoman said Regional Administrator Cathy Stepp recently recused herself in the Wisconsin request. Stepp had advocated against the Obama rules as Wisconsin DNR secretary.

President Donald Trump attended the announcement in Washington, D.C., that Foxconn had chosen Wisconsin for its plant.

Foxconn is building a $10 billion plant to produce liquid crystal display panels. The plant could employ as many as 13,000 people.

In a statement, Foxconn said it is monitoring the situation. Foxconn said it supports the DNR's recommendation, adding that it is “grounded in science, and supports Wisconsin’s economic goals while effectively meeting air quality requirements.

“We believe that any developments regarding related standards in the future will be manageable and we are moving forward with our plans for the Wisconsin project.”

The new rules lower the national standard for ozone from 75 parts per billion to 70 parts per billion. Some, but not all, air monitors in eastern Wisconsin have three-year averages, from 2014 and 2016, that exceed 70 parts per billion, DNR figures show.

In its letter to the EPA, Wisconsin officials showed how prevailing winds along the shoreline push the ingredients that produce ozone north and trigger high ozone levels as far away as Door County.

In some cases, such as in Milwaukee County, a lakeside air monitor in Bayside violated the standard at 71 parts per billion, but two others sites — at DNR headquarters on N. Martin Luther King Drive and Sixteenth Street Community Health Center on S. Cesar Chavez Drive — fell below the standard.

The DNR also noted 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.

The EPA responded in December by declaring all Milwaukee, Washington, Ozaukee, Waukesha and Racine counties were in violation. The same is true for northern Door County and Kenosha County east of I-94. The EPA also found areas near the shoreline of Sheboygan and Manitowoc counties in violation.

If the entire state is not exempted, the DNR is pushing for a smaller area to be affected by the stricter regulations.

For example, in Racine County, the DNR is asking that an area where Foxconn would be located would be in compliance. DNR spokesman Jim Dick said that decision has nothing to do with the Foxconn project. He pointed to DNR documents showing other factors such as prevailing wind currents and ozone that becomes diluted as it moves inland. "If you are asking whether we did it for Foxconn, the answer is no," Dick said.

Tyson Cook, who tracks air emissions issues for Clean Wisconsin, said the DNR’s approach virtually ignores home-grown pollution, noting that air monitors as far away as Lake Geneva have ozone levels just below the new limit.

“The point is that the Clean Air Act looked at ozone in these wider areas because it’s not just a local phenomenon,” Cook said. “When you get away from the lakeshore, they don’t just drop away precipitously.”

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Janet G. McCabe was acting assistant administrator for air and radiation at the EPA in the Obama administration and is currently a professor of law at Indiana University.

“The purpose of the standard is so that people know they are in an area where air quality can be unhealthy, some of the time,” said McCabe, a senior fellow at the Environmental Law and Policy Center, a public interest law firm.

“For that, it doesn’t matter whether the air pollution comes from local industries or comes from hundreds of miles away. It matters that it is healthy or unhealthy.”