State DOJ seeks to block EPA from taking second look at Foxconn area ozone standards

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The Wisconsin Department of Justice is seeking to block an Environmental Protection Agency effort to reconsider its ozone designations for the southeastern portion of the state.

The EPA asked a federal appeals court in May to give it a chance to take another look at its designations after they were challenged by Clean Wisconsin, the state of Illinois and city of Chicago last year.

But a brief from the Wisconsin Department of Justice filed this week argues the agency had ample evidence to make its decision and taking another look “would be costly and wasteful for Wisconsin” while also causing uncertainty for businesses in the state.

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“If Wisconsin’s nonattainment boundaries remain unknown for another few years, Wisconsin entities may be forced to delay needed improvements or forgo them entirely,” the brief from Democratic attorney general Josh Kaul’s office says.

While the designations could potentially apply throughout southeastern Wisconsin, much of the focus has been on whether Racine County is placed in non-attainment. The designations made by the EPA left Foxconn Technology Group’s Mount Pleasant campus a little more than a mile outside of the non-attainment area.

If all of Racine County is put under non-attainment status, it could limit Foxconn’s ability to build its planned LCD manufacturing facility or at least add to the cost of future expansions.

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Kaul’s office did not respond to an email regarding whether the Foxconn project was a consideration in its brief.

Asked for comment on the Wisconsin brief, Clean Wisconsin general counsel Katie Nekola said: “Wisconsin should do its part to reduce ozone levels, to prevent asthma and other respiratory health problems.”

Then Gov. Scott Walker had proposed in 2016 that the entire state be designated in attainment of the 2015 ozone standard, which lowered the allowable amount of ambient ozone in the air from 75 to 70 parts per billion.

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Walker argued the state’s ozone levels had greatly improved, ozone-causing emissions had been reduced and elevated levels of ozone were caused by sources in other states. As an alternative to designating the entire state in attainment, Wisconsin officials suggested non-attainment designations for narrow strips along Lake Michigan.

Initially, the EPA rejected Wisconsin’s argument and planned to designate much of the region as not having met more stringent ozone standards, only to reverse course last year and limit the designation to areas near the lake in Milwaukee, Kenosha, Ozaukee and Sheboygan counties.

Groups challenging the designation argued the EPA did not have a basis for changing its designations. Internal EPA emails obtained by Clean Wisconsin and the Sierra Club suggest then EPA administrator Scott Pruitt and other political appointees had overruled the concerns of agency scientists in making the decision.

The emails, shared with BizTimes by Clean Wisconsin, suggest Wisconsin in some cases had cherry-picked data to establish how far inland the nonattainment areas should extend.

“My background is in ozone chemistry. I do not see a sound technical basis for the areas we are being directed to finalize in Wisconsin,” Jenny Liljegren, a physical scientist in the EPA Region 5 attainment planning and maintenance section, wrote in April 2018. “I will need the wordsmithing of the legal and policy experts if we are really going to do this – I am still in disbelief.”

In its May brief, the EPA asked the D.C. Circuit Court of Appeals to allow it to take up the designations again, arguing that in hindsight and after considering the challenges to its determinations, the agency felt the court could benefit from additional explanations.

The EPA said its review could include supplementing the record of its decision, additional communications with states or undertaking a 120-day notice process.

Wisconsin officials argue the state Department of Natural Resources has already put significant time and resources in developing scientific evidence to support recommendations to limit the non-attainment areas to narrow strips along the lake.

“EPA accepted those recommendations because WDNR’s evidence was the most compelling evidence before the agency,” the state’s brief says. “Petitioners could have, but did not, submit evidence to counter Wisconsin’s, and EPA could have, but did not, produce its own evidence of similar quality to Wisconsin’s. Neither Petitioners nor EPA should get another chance at Wisconsin’s expense.”

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