Air Plan Approval; Wisconsin; Partial Approval and Partial Disapproval of the Rhinelander SO2, 15418-15420 [2021-05754]
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Federal Register / Vol. 86, No. 54 / Tuesday, March 23, 2021 / Rules and Regulations
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[FR Doc. 2021–05866 Filed 3–22–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2016–0074; FRL–10021–
23–Region 5]
Air Plan Approval; Wisconsin; Partial
Approval and Partial Disapproval of
the Rhinelander SO2 Nonattainment
Area Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is partially approving and
partially disapproving a revision to the
Wisconsin State Implementation Plan
(SIP) intended to provide for attaining
the 2010 primary, health-based 1-hour
sulfur dioxide (SO2) national ambient
air quality standard (NAAQS or
‘‘standard’’) for the Rhinelander SO2
nonattainment area. This SIP revision
(hereinafter referred to as Wisconsin’s
Rhinelander SO2 plan or plan) includes
Wisconsin’s attainment demonstration
and other attainment planning elements
required under the Clean Air Act (CAA).
EPA is approving the base year
emissions inventory and affirming that
the nonattainment new source review
requirements for the area have been met.
EPA is also approving the AhlstromMunksjo¨ facility SO2 emission limit as
SIP strengthening. EPA is disapproving
the attainment demonstration, since the
plan relies on credit for more stack
height than is creditable under the
regulations for good engineering
practice (GEP) stack height.
Additionally, EPA is disapproving the
plan for failing to meet the requirements
for meeting reasonable further progress
(RFP) toward attainment of the NAAQS,
reasonably available control measures/
reasonably available control technology
(RACM/RACT), emission limitations
and control measures as necessary to
attain the NAAQS, and contingency
measures.
DATES: This final rule is effective on
April 22, 2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2016–0074. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
SUMMARY:
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disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and
facility closures due to COVID–19. We
recommend that you telephone Abigail
Teener, Environmental Engineer, at
(312) 353–7314 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Abigail Teener, Environmental
Engineer, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 353–7314, teener.abigail@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. What actions did EPA propose on this
SIP submission?
On November 25, 2020,1 EPA
proposed to partially approve and
partially disapprove Wisconsin’s
Rhinelander SO2 plan submitted on
January 22, 2016 and supplemented on
July 18, 2016 and November 29, 2016.
EPA proposed to approve the base year
emissions inventory and to affirm that
the new source review requirements for
the area had previously been met.2 EPA
also proposed to approve the AhlstromMunksjo¨ (formerly Expera Specialty
Solutions LLC (Expera)) SO2 emission
limit as SIP strengthening. Specifically,
EPA proposed to approve Wisconsin’s
Administrative Order AM–15–01,
including emission limits and
associated compliance monitoring,
recordkeeping, and reporting
requirements.
At that time, EPA also proposed to
disapprove the attainment
demonstration. EPA’s notice of
proposed rulemaking provided an
explanation of the provisions in the
CAA and in the implementing stack
height regulations that limit the stack
height that is creditable for attainment
planning purposes. In particular, the
proposed rulemaking underscored the
provisions that allow credit for stack
heights above ‘‘formula GEP stack
height’’ only if suitable control
1 85
2 79
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FR 75273 (November 25, 2020).
FR 60064 (October 6, 2014).
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requirements are established, and only
to the extent that such credit is
necessary to resolve any remaining
violations of the air quality standard. In
addition, EPA proposed to disapprove
the plan for failing to meet the
requirements for meeting RFP toward
attainment of the NAAQS, RACM/
RACT, emission limitations and control
measures as necessary to attain the
NAAQS, and contingency measures.
EPA stated that final action to
disapprove portions of the plan would
start sanctions and Federal
implementation plan (FIP) clocks for
this area under CAA sections 179(a)–(b)
and 110(c), respectively. EPA noted that
the sanctions and FIP clocks would be
terminated by an EPA rulemaking
approving a revised plan.
II. What is EPA’s response to comments
received on the proposed rulemaking?
The proposed action described above
provided a public comment period that
closed on December 28, 2020. EPA
received one adverse comment letter
from the Wisconsin Department of
Natural Resources (Wisconsin) and one
anonymous, somewhat supportive
comment on the proposed action. These
comments are summarized below along
with EPA’s responses.
Wisconsin Comment: Wisconsin
recommends that EPA not finalize the
proposed action. Wisconsin stated that
they worked cooperatively with EPA on
the content of Wisconsin’s Rhinelander
SO2 plan, and that EPA Region 5 staff
and Wisconsin were in agreement when
Wisconsin submitted their plan in
January 2016. Wisconsin also asserted
that after the facility raised the stack to
the GEP height specified in Wisconsin’s
attainment plan submittal, the
monitored SO2 concentrations greatly
decreased and have not recorded
NAAQS violations since 2018.
Additionally, Wisconsin stated that
although they and the facility
(Ahlstrom-Munksjo¨) do not agree with
EPA’s interpretation of the stack height
regulations, they have been working
closely with EPA on a submittal that
would comply with the regulations.
Finally, Wisconsin stated that they
understand that EPA is taking this
action due to a court-ordered deadline,
but objected that they believe this action
will create unnecessary burdens for EPA
and Wisconsin and not accelerate the
timeline for submitting a future plan for
attaining the NAAQS, as Wisconsin
plans to issue an order with a limit that
complies with the EPA stack height
regulations on April 1, 2021.
Response: At the time of Wisconsin’s
submittal in January 2016, EPA Region
5 staff informally shared their
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Federal Register / Vol. 86, No. 54 / Tuesday, March 23, 2021 / Rules and Regulations
preliminary views regarding
Wisconsin’s submittal. Unfortunately,
these views were not informed by a
complete understanding of how
Wisconsin’s submittal related to section
123 of the CAA and EPA regulations at
40 CFR 51.118 and 51.100(hh)–(kk)
restricting the circumstances in which
increased stack height can be credited in
emission limitations in SIPs. As EPA
informed Wisconsin in February 2017,
in the process of conducting an internal
regulatory review of Wisconsin’s
submittal, EPA found that the plan did
not meet the applicable requirements
due to the reliance on a stack height
above GEP stack height. Specifically,
Wisconsin’s plan relied on a stack
height above the ‘‘formula GEP height’’
defined in 40 CFR 51.100(ii)(2) without
meeting the control requirements in 40
CFR 51.100(ii)(3) and (kk)(1).
Wisconsin’s comments state that
Wisconsin and the company disagree
with EPA’s interpretation of the stack
height regulations. However, since
Wisconsin identified no specific
objections to EPA’s interpretation of
these regulations as delineated in the
proposed rule, EPA has no reason to
reevaluate this interpretation as it
applies here, and EPA continues to
interpret the stack height regulations as
prohibiting reliance on stack heights
above formula GEP height, unless the
plan also establishes control
requirements specified in 40 CFR
51.100(ii)(3) and (kk)(1). EPA also notes
that its interpretation has been
judicially affirmed. See, Montana
Sulphur & Chemical Company v. EPA,
666 F.3d 1174 (9th Cir. 2012).
EPA appreciates that Wisconsin has
nevertheless committed to submitting
an approvable plan consistent with
section 123 of the CAA and EPA’s stack
height regulations. EPA looks forward to
a future rulemaking to address that
submittal. EPA also appreciates the
continued discussions between EPA and
Wisconsin on these issues.
EPA understands that the finalization
of the proposed action will not affect the
timeline of Wisconsin’s planned
submittal of a corrective SIP, which
Wisconsin expects to submit by March
31, 2021. Nevertheless, EPA may not
defer acting on Wisconsin’s 2016
submittal, which the State has never
withdrawn, but must instead act more
promptly due to a court-ordered
deadline that was established for EPA to
fulfill its obligation under section 110(k)
of the CAA to complete rulemaking on
this state submittal.
EPA will pursue a separate
rulemaking to address a future
supplemental submittal from
Wisconsin. If EPA issues a rulemaking
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that shows that Wisconsin has met all
applicable requirements, that action
would terminate the sanctions and FIP
clocks initiated by this action, and
Wisconsin would be subject to no
further planning obligations with
respect to the 2010 SO2 air quality
standard for the Rhinelander area.
Anonymous Comment: The
commenter supports the finalization of
the proposed action. However, the
commenter suggested that EPA could
strengthen its justification in several
ways. The commenter suggested that
EPA clarify the differences between the
State’s and EPA’s interpretation of the
stack height regulations, discuss the
effects of SO2 on human health and the
environment, and describe some
specific actions the facility could take to
reduce SO2.
Response: EPA appreciates the
commenter’s support in finalizing the
proposed action.
The commenter appears to have
identified the primary distinction
between the State’s and EPA’s
interpretation of the stack height
regulation, that EPA unlike the State
believes that the stack height regulations
require emission control (new source
performance standards or, alternatively,
best available retrofit technology) as a
prerequisite for any credit being granted
for stack height above formula GEP
height. EPA presented an extensive
description of its interpretation of these
regulations in its proposed rule, and
EPA believes that further discussion of
how the State’s views might differ is
unwarranted in the absence of
comments from the State specifying
such distinctions in its interpretation. In
any event, EPA’s interpretation is wellsettled, and was affirmed by the U.S.
Coury of Appeals for the 9th Circuit in
Montana Sulphur & Chemical Company
v. EPA, 666 F.3d 1174 (9th. Cir. 2012).
The commenter is correct that control
of SO2 emissions has a number of
environmental benefits; beyond
avoiding the health effects that
prompted the promulgation of the SO2
air quality standard, SO2 emission
reductions also reduce the long range
formation of fine particulate matter and
reduce regional haze. That said, these
benefits are pertinent to programs
beyond the scope of this SIP action that
are addressed under other authority,
whereas the purpose of this action is
merely to determine whether
Wisconsin’s plan is consistent with the
CAA and with EPA’s regulations
governing action on attainment
demonstration SIPs.
Wisconsin and the facility are well
aware of control options for meeting the
SO2 air quality standard without
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15419
reliance on a stack height above the
height that is creditable under the stack
height regulations. In any case, the
subject of this rule is the adequacy of
Wisconsin’s 2016 plan, not the options
for remedying the deficiencies in
Wisconsin’s 2016 plan. Therefore, no
additional discussion of control options
is necessary here.
III. What action is EPA taking?
EPA is approving the base year
emissions inventory and affirming that
the new source review requirements for
the area have been met. EPA is also
approving Wisconsin’s Administrative
Order AM–15–01, containing emission
limits and associated compliance
monitoring, recordkeeping, and
reporting requirements for AhlstromMunksj’ (formerly Expera), as SIP
strengthening.3 EPA is disapproving the
attainment demonstration, as well as the
requirement for meeting RFP toward
attainment of the NAAQS, RACM/
RACT, emission limitations and control
measures as necessary to attain the
NAAQS, and contingency measures.
This disapproval will start sanctions
clocks for this area under CAA section
179(a)–(b), including a requirement for
2-for-1 offsets for any major new sources
or major modifications 18 months after
the effective date of this action, and
highway funding sanctions 6 months
thereafter, as well as initiate an
obligation for EPA to promulgate a FIP
within 24 months under CAA section
110(c), unless in the meantime EPA has
approved a plan that satisfies the
requirements that EPA is finding
unsatisfied.
As noted above, Wisconsin has
committed to submit a supplemental
submittal addressing EPA’s concerns.
EPA expects such a submittal to contain
more stringent limits for AhlstromMunksjo¨’s Rhinelander facility, such
that it may be appropriate for the
prospective document containing the
expected enhanced limits to replace the
administrative order being approved
here, with the result that the SIP, if
revised by Wisconsin and approved by
EPA to incorporate them, would then
only include the enhanced
requirements. However, any such
replacement would be considered in the
context of notice-and-comment
rulemaking on the prospective
Wisconsin submittal and is not germane
here.
3 EPA is approving an order issued to the
facility’s prior owner, Expera, but the order
continues to limit emissions from the facility,
which is now owned by Ahlstrom-Munksjo¨.
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Federal Register / Vol. 86, No. 54 / Tuesday, March 23, 2021 / Rules and Regulations
IV. Incorporation by Reference
In this rule, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of Wisconsin’s
Administrative Order AM–15–01
described in the amendments to 40 CFR
part 52 set forth below. EPA has made,
and will continue to make, these
documents generally available through
www.regulations.gov, and at the EPA
Region 5 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
partially approves and partially
disapproves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
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Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 24, 2021. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Dated: March 15, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
For the reasons stated in the
preamble, EPA amends title 40 CFR part
52 as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2570 is amended by
adding paragraph (c)(142) to read as
follows:
■
§ 52.2570
Identification of plan.
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(c) * * *
(142) On January 22, 2016, July 18,
2016, and November 29, 2016, the
Wisconsin Department of Natural
Resources submitted a request to revise
the Wisconsin State Implementation
Plan for attaining the 2010 primary,
health-based 1-hour SO2 national
ambient air quality standard for the
Rhinelander SO2 nonattainment area.
This submittal includes an emission
inventory for this area and an
administrative order for the Rhinelander
facility formerly owned by Expera.
(i) Incorporation by reference. (A)
Wisconsin Administrative Order AM–
15–01, issued by the Wisconsin
Department of Natural Resources on
January 15, 2016, to Expera Specialty
Solutions LLC for its facility located in
Rhinelander, Wisconsin.
(B) [Reserved]
(ii) [Reserved]
3. Section 52.2572 is amended by
adding paragraph (c) to read as follows:
■
§ 52.2572
Approval status.
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(c) The Administrator disapproves
Wisconsin’s attainment demonstration,
submitted on January 22, 2016 and
supplemented on July 18, 2016 and
November 29, 2016, for the Rhinelander
SO2 nonattainment area.
[FR Doc. 2021–05754 Filed 3–22–21; 8:45 am]
BILLING CODE 6560–50–P
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur oxides.
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Agencies
[Federal Register Volume 86, Number 54 (Tuesday, March 23, 2021)]
[Rules and Regulations]
[Pages 15418-15420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05754]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2016-0074; FRL-10021-23-Region 5]
Air Plan Approval; Wisconsin; Partial Approval and Partial
Disapproval of the Rhinelander SO2 Nonattainment Area Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is partially
approving and partially disapproving a revision to the Wisconsin State
Implementation Plan (SIP) intended to provide for attaining the 2010
primary, health-based 1-hour sulfur dioxide (SO2) national
ambient air quality standard (NAAQS or ``standard'') for the
Rhinelander SO2 nonattainment area. This SIP revision
(hereinafter referred to as Wisconsin's Rhinelander SO2 plan
or plan) includes Wisconsin's attainment demonstration and other
attainment planning elements required under the Clean Air Act (CAA).
EPA is approving the base year emissions inventory and affirming that
the nonattainment new source review requirements for the area have been
met. EPA is also approving the Ahlstrom-Munksj[ouml] facility
SO2 emission limit as SIP strengthening. EPA is disapproving
the attainment demonstration, since the plan relies on credit for more
stack height than is creditable under the regulations for good
engineering practice (GEP) stack height. Additionally, EPA is
disapproving the plan for failing to meet the requirements for meeting
reasonable further progress (RFP) toward attainment of the NAAQS,
reasonably available control measures/reasonably available control
technology (RACM/RACT), emission limitations and control measures as
necessary to attain the NAAQS, and contingency measures.
DATES: This final rule is effective on April 22, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2016-0074. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
through www.regulations.gov or at the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding Federal holidays and facility
closures due to COVID-19. We recommend that you telephone Abigail
Teener, Environmental Engineer, at (312) 353-7314 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT: Abigail Teener, Environmental
Engineer, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-7314,
[email protected].
SUPPLEMENTARY INFORMATION:
I. What actions did EPA propose on this SIP submission?
On November 25, 2020,\1\ EPA proposed to partially approve and
partially disapprove Wisconsin's Rhinelander SO2 plan
submitted on January 22, 2016 and supplemented on July 18, 2016 and
November 29, 2016. EPA proposed to approve the base year emissions
inventory and to affirm that the new source review requirements for the
area had previously been met.\2\ EPA also proposed to approve the
Ahlstrom-Munksj[ouml] (formerly Expera Specialty Solutions LLC
(Expera)) SO2 emission limit as SIP strengthening.
Specifically, EPA proposed to approve Wisconsin's Administrative Order
AM-15-01, including emission limits and associated compliance
monitoring, recordkeeping, and reporting requirements.
---------------------------------------------------------------------------
\1\ 85 FR 75273 (November 25, 2020).
\2\ 79 FR 60064 (October 6, 2014).
---------------------------------------------------------------------------
At that time, EPA also proposed to disapprove the attainment
demonstration. EPA's notice of proposed rulemaking provided an
explanation of the provisions in the CAA and in the implementing stack
height regulations that limit the stack height that is creditable for
attainment planning purposes. In particular, the proposed rulemaking
underscored the provisions that allow credit for stack heights above
``formula GEP stack height'' only if suitable control requirements are
established, and only to the extent that such credit is necessary to
resolve any remaining violations of the air quality standard. In
addition, EPA proposed to disapprove the plan for failing to meet the
requirements for meeting RFP toward attainment of the NAAQS, RACM/RACT,
emission limitations and control measures as necessary to attain the
NAAQS, and contingency measures. EPA stated that final action to
disapprove portions of the plan would start sanctions and Federal
implementation plan (FIP) clocks for this area under CAA sections
179(a)-(b) and 110(c), respectively. EPA noted that the sanctions and
FIP clocks would be terminated by an EPA rulemaking approving a revised
plan.
II. What is EPA's response to comments received on the proposed
rulemaking?
The proposed action described above provided a public comment
period that closed on December 28, 2020. EPA received one adverse
comment letter from the Wisconsin Department of Natural Resources
(Wisconsin) and one anonymous, somewhat supportive comment on the
proposed action. These comments are summarized below along with EPA's
responses.
Wisconsin Comment: Wisconsin recommends that EPA not finalize the
proposed action. Wisconsin stated that they worked cooperatively with
EPA on the content of Wisconsin's Rhinelander SO2 plan, and
that EPA Region 5 staff and Wisconsin were in agreement when Wisconsin
submitted their plan in January 2016. Wisconsin also asserted that
after the facility raised the stack to the GEP height specified in
Wisconsin's attainment plan submittal, the monitored SO2
concentrations greatly decreased and have not recorded NAAQS violations
since 2018. Additionally, Wisconsin stated that although they and the
facility (Ahlstrom-Munksj[ouml]) do not agree with EPA's interpretation
of the stack height regulations, they have been working closely with
EPA on a submittal that would comply with the regulations. Finally,
Wisconsin stated that they understand that EPA is taking this action
due to a court-ordered deadline, but objected that they believe this
action will create unnecessary burdens for EPA and Wisconsin and not
accelerate the timeline for submitting a future plan for attaining the
NAAQS, as Wisconsin plans to issue an order with a limit that complies
with the EPA stack height regulations on April 1, 2021.
Response: At the time of Wisconsin's submittal in January 2016, EPA
Region 5 staff informally shared their
[[Page 15419]]
preliminary views regarding Wisconsin's submittal. Unfortunately, these
views were not informed by a complete understanding of how Wisconsin's
submittal related to section 123 of the CAA and EPA regulations at 40
CFR 51.118 and 51.100(hh)-(kk) restricting the circumstances in which
increased stack height can be credited in emission limitations in SIPs.
As EPA informed Wisconsin in February 2017, in the process of
conducting an internal regulatory review of Wisconsin's submittal, EPA
found that the plan did not meet the applicable requirements due to the
reliance on a stack height above GEP stack height. Specifically,
Wisconsin's plan relied on a stack height above the ``formula GEP
height'' defined in 40 CFR 51.100(ii)(2) without meeting the control
requirements in 40 CFR 51.100(ii)(3) and (kk)(1).
Wisconsin's comments state that Wisconsin and the company disagree
with EPA's interpretation of the stack height regulations. However,
since Wisconsin identified no specific objections to EPA's
interpretation of these regulations as delineated in the proposed rule,
EPA has no reason to reevaluate this interpretation as it applies here,
and EPA continues to interpret the stack height regulations as
prohibiting reliance on stack heights above formula GEP height, unless
the plan also establishes control requirements specified in 40 CFR
51.100(ii)(3) and (kk)(1). EPA also notes that its interpretation has
been judicially affirmed. See, Montana Sulphur & Chemical Company v.
EPA, 666 F.3d 1174 (9th Cir. 2012).
EPA appreciates that Wisconsin has nevertheless committed to
submitting an approvable plan consistent with section 123 of the CAA
and EPA's stack height regulations. EPA looks forward to a future
rulemaking to address that submittal. EPA also appreciates the
continued discussions between EPA and Wisconsin on these issues.
EPA understands that the finalization of the proposed action will
not affect the timeline of Wisconsin's planned submittal of a
corrective SIP, which Wisconsin expects to submit by March 31, 2021.
Nevertheless, EPA may not defer acting on Wisconsin's 2016 submittal,
which the State has never withdrawn, but must instead act more promptly
due to a court-ordered deadline that was established for EPA to fulfill
its obligation under section 110(k) of the CAA to complete rulemaking
on this state submittal.
EPA will pursue a separate rulemaking to address a future
supplemental submittal from Wisconsin. If EPA issues a rulemaking that
shows that Wisconsin has met all applicable requirements, that action
would terminate the sanctions and FIP clocks initiated by this action,
and Wisconsin would be subject to no further planning obligations with
respect to the 2010 SO2 air quality standard for the
Rhinelander area.
Anonymous Comment: The commenter supports the finalization of the
proposed action. However, the commenter suggested that EPA could
strengthen its justification in several ways. The commenter suggested
that EPA clarify the differences between the State's and EPA's
interpretation of the stack height regulations, discuss the effects of
SO2 on human health and the environment, and describe some
specific actions the facility could take to reduce SO2.
Response: EPA appreciates the commenter's support in finalizing the
proposed action.
The commenter appears to have identified the primary distinction
between the State's and EPA's interpretation of the stack height
regulation, that EPA unlike the State believes that the stack height
regulations require emission control (new source performance standards
or, alternatively, best available retrofit technology) as a
prerequisite for any credit being granted for stack height above
formula GEP height. EPA presented an extensive description of its
interpretation of these regulations in its proposed rule, and EPA
believes that further discussion of how the State's views might differ
is unwarranted in the absence of comments from the State specifying
such distinctions in its interpretation. In any event, EPA's
interpretation is well-settled, and was affirmed by the U.S. Coury of
Appeals for the 9th Circuit in Montana Sulphur & Chemical Company v.
EPA, 666 F.3d 1174 (9th. Cir. 2012).
The commenter is correct that control of SO2 emissions
has a number of environmental benefits; beyond avoiding the health
effects that prompted the promulgation of the SO2 air
quality standard, SO2 emission reductions also reduce the
long range formation of fine particulate matter and reduce regional
haze. That said, these benefits are pertinent to programs beyond the
scope of this SIP action that are addressed under other authority,
whereas the purpose of this action is merely to determine whether
Wisconsin's plan is consistent with the CAA and with EPA's regulations
governing action on attainment demonstration SIPs.
Wisconsin and the facility are well aware of control options for
meeting the SO2 air quality standard without reliance on a
stack height above the height that is creditable under the stack height
regulations. In any case, the subject of this rule is the adequacy of
Wisconsin's 2016 plan, not the options for remedying the deficiencies
in Wisconsin's 2016 plan. Therefore, no additional discussion of
control options is necessary here.
III. What action is EPA taking?
EPA is approving the base year emissions inventory and affirming
that the new source review requirements for the area have been met. EPA
is also approving Wisconsin's Administrative Order AM-15-01, containing
emission limits and associated compliance monitoring, recordkeeping,
and reporting requirements for Ahlstrom-Munksj' (formerly Expera), as
SIP strengthening.\3\ EPA is disapproving the attainment demonstration,
as well as the requirement for meeting RFP toward attainment of the
NAAQS, RACM/RACT, emission limitations and control measures as
necessary to attain the NAAQS, and contingency measures. This
disapproval will start sanctions clocks for this area under CAA section
179(a)-(b), including a requirement for 2-for-1 offsets for any major
new sources or major modifications 18 months after the effective date
of this action, and highway funding sanctions 6 months thereafter, as
well as initiate an obligation for EPA to promulgate a FIP within 24
months under CAA section 110(c), unless in the meantime EPA has
approved a plan that satisfies the requirements that EPA is finding
unsatisfied.
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\3\ EPA is approving an order issued to the facility's prior
owner, Expera, but the order continues to limit emissions from the
facility, which is now owned by Ahlstrom-Munksj[ouml].
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As noted above, Wisconsin has committed to submit a supplemental
submittal addressing EPA's concerns. EPA expects such a submittal to
contain more stringent limits for Ahlstrom-Munksj[ouml]'s Rhinelander
facility, such that it may be appropriate for the prospective document
containing the expected enhanced limits to replace the administrative
order being approved here, with the result that the SIP, if revised by
Wisconsin and approved by EPA to incorporate them, would then only
include the enhanced requirements. However, any such replacement would
be considered in the context of notice-and-comment rulemaking on the
prospective Wisconsin submittal and is not germane here.
[[Page 15420]]
IV. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of Wisconsin's
Administrative Order AM-15-01 described in the amendments to 40 CFR
part 52 set forth below. EPA has made, and will continue to make, these
documents generally available through www.regulations.gov, and at the
EPA Region 5 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action partially approves and partially disapproves state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 24, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: March 15, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
For the reasons stated in the preamble, EPA amends title 40 CFR
part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.2570 is amended by adding paragraph (c)(142) to read as
follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(142) On January 22, 2016, July 18, 2016, and November 29, 2016,
the Wisconsin Department of Natural Resources submitted a request to
revise the Wisconsin State Implementation Plan for attaining the 2010
primary, health-based 1-hour SO2 national ambient air
quality standard for the Rhinelander SO2 nonattainment area.
This submittal includes an emission inventory for this area and an
administrative order for the Rhinelander facility formerly owned by
Expera.
(i) Incorporation by reference. (A) Wisconsin Administrative Order
AM-15-01, issued by the Wisconsin Department of Natural Resources on
January 15, 2016, to Expera Specialty Solutions LLC for its facility
located in Rhinelander, Wisconsin.
(B) [Reserved]
(ii) [Reserved]
0
3. Section 52.2572 is amended by adding paragraph (c) to read as
follows:
Sec. 52.2572 Approval status.
* * * * *
(c) The Administrator disapproves Wisconsin's attainment
demonstration, submitted on January 22, 2016 and supplemented on July
18, 2016 and November 29, 2016, for the Rhinelander SO2
nonattainment area.
[FR Doc. 2021-05754 Filed 3-22-21; 8:45 am]
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