[Federal Register Volume 85, Number 228 (Wednesday, November 25, 2020)]
[Proposed Rules]
[Pages 75273-75280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25827]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2016-0074; FRL-10016-90-Region 5]
Air Plan Approval; Wisconsin; Partial Approval and Partial
Disapproval of the Oneida County SO2 Nonattainment Area Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove a revision to the Wisconsin
State Implementation Plan (SIP) for attaining the 2010 primary, health-
based 1-hour sulfur dioxide (SO2) national ambient air
quality standard (NAAQS or ``standard'') for the Oneida County
SO2 nonattainment area. This SIP revision (hereinafter
referred to as Wisconsin's Oneida County SO2 plan or plan)
includes Wisconsin's attainment demonstration and other attainment
planning elements required under the Clean Air Act (CAA). EPA is
proposing to approve some elements of the Oneida County SO2
plan and disapprove some elements of the plan, including the attainment
demonstration, since it contains facility credit for a stack height
that does not meet the regulations for good engineering practice stack
height regarding the prohibition of air pollution dispersion
techniques.
DATES: Comments must be received on or before December 28, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0074 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Jennifer Liljegren, Physical
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6832,
[email protected]. The EPA Region 5 office 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.
SUPPLEMENTARY INFORMATION:
I. Why was Wisconsin required to submit a plan for the Oneida County
SO2 nonattainment area?
On June 22, 2010, EPA published a new 1-hour primary SO2
NAAQS of 75 parts per billion (ppb). This standard is met at an ambient
air quality monitoring site when the 3-year average of the annual 99th
percentile of daily maximum 1-hour average
[[Page 75274]]
concentrations does not exceed 75 ppb, as determined in accordance with
appendix T of 40 CFR part 50.\1\ On August 5, 2013, EPA designated a
first set of 29 areas of the country as nonattainment for the 2010
SO2 NAAQS, including the Oneida County SO2
nonattainment area in Wisconsin.\2\ These area designations became
effective on October 4, 2013. Section 191(a) of the CAA directs states
to submit SIPs for areas designated as nonattainment for the
SO2 NAAQS (hereinafter called ``plans'' or ``nonattainment
plans'') to EPA within 18 months of the effective date of the
designation, i.e., by no later than April 4, 2015 in this case. Under
CAA section 192(a), these plans are required to have measures that will
provide for attainment of the NAAQS as expeditiously as practicable,
but no later than five years from the effective date of designation,
i.e., October 4, 2018, for the Oneida County SO2
nonattainment area.
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\1\ 75 FR 35520, codified at 40 CFR 50.17(a)-(b).
\2\ 78 FR 47191, codified at 40 CFR part 81, subpart C.
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In response to the requirement for SO2 nonattainment
plan submittals, Wisconsin submitted to EPA the Oneida County
SO2 plan on January 22, 2016, and submitted supplemental
information on July 18, 2016, and November 29, 2016.
For reasons described in the following sections, EPA is proposing
to disapprove portions of the Oneida County SO2 plan.
Finalization of this action would start sanctions clocks which can be
stopped only if the conditions of EPA's regulations at 40 CFR 52.31 are
met.
If EPA finalizes the disapproval that EPA is proposing here, that
action would initiate a new sanctions clock under section 179,
providing for new source sanctions if EPA has not approved a revised
plan within 18 months after final disapproval, and providing for
highway funding sanctions if EPA has not approved a revised plan within
6 months thereafter, as well as initiating an obligation for EPA to
promulgate a Federal implementation plan within 24 months unless in the
meantime Wisconsin has submitted and EPA has approved a plan addressing
these attainment planning requirements.
The remainder of this preamble describes the requirements that
nonattainment plans must meet in order to obtain EPA approval, provides
the history and description of EPA's stack height regulations (which
are pertinent to Wisconsin's plan for Oneida County), provides a review
of the Oneida County SO2 plan with respect to these
requirements, and describes EPA's proposed action on the plan.
On September 10, 2020, following discussions between EPA and
Wisconsin regarding the requirements of EPA's stack height regulations,
Wisconsin sent EPA a letter, included in the docket for this proposed
action, expressing a desire for additional analyses of the ``formula
GEP height'' (see 40 CFR 51.100(ii)(2) for EPA's regulations addressing
formula height demonstrations) for the Ahlstrom-Munksjo facility and
committing to adopt a limit consistent with EPA's stack height
regulations by April 1, 2021. However, this letter does not provide any
technical information that affects EPA's review of Wisconsin's existing
plan that was submitted to EPA, and the commitment for an additional
submittal does not serve as a substitute for a plan with suitable,
enforceable limits. Therefore, this recent letter does not alter EPA's
review of Wisconsin's Oneida County SO2 plan.
II. Requirements for Nonattainment Plans
Nonattainment plans for SO2 must meet the applicable
requirements of the CAA, specifically sections 110, 172, 191, and 192.
EPA's regulations governing nonattainment SIP submissions are set forth
at 40 CFR part 51, with specific procedural requirements and control
strategy requirements codified at subparts F and G, respectively. Soon
after Congress enacted the 1990 Amendments to the CAA, EPA issued
comprehensive guidance on SIP revisions in the ``General Preamble for
the Implementation of Title I of the CAA Amendments of 1990''
(``General Preamble'').\3\ Among other things, the General Preamble
addressed SO2 SIP submissions and fundamental principles for
SIP control strategies.\4\ On April 23, 2014, EPA issued recommended
guidance for meeting the statutory requirements in SO2 SIP
submissions in a document entitled ``Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions'' (``2014 SO2
Guidance''). In the 2014 SO2 Guidance, EPA described the
statutory requirements of CAA section 172(c) for a complete
nonattainment plan, including: An accurate emissions inventory of
current emissions for all sources of SO2 within the
nonattainment area; an attainment demonstration; a demonstration of
RFP; implementation of RACM (including RACT); new source review;
enforceable emission limitations and control measures; and adequate
contingency measures for the affected area.
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\3\ 57 FR 13498 (April 16, 1992).
\4\ Id. at 13548-13549, 13567-13568.
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For EPA to fully approve a SIP revision as meeting the requirements
of CAA sections 110, 172, 191, and 192, and EPA's regulations at 40 CFR
part 51, the plan for an affected area must demonstrate to EPA's
satisfaction that each of the aforementioned requirements has been met.
Under CAA section 110(l), EPA may not approve a plan that would
interfere with any applicable requirement concerning NAAQS attainment
and RFP, or any other applicable requirement. Under CAA section 193, no
requirement in effect (or required to be adopted by an order,
settlement, agreement, or plan in effect before November 15, 1990) in
any area that is nonattainment for any air pollutant may be modified in
any manner unless it ensures equivalent or greater emission reductions
of such air pollutant.
Sections 172(c)(1) and 172(c)(6) of the CAA direct states with
areas designated as nonattainment to demonstrate that the submitted
plan and the emissions limitations and control measures in it provide
for attainment of the NAAQS. 40 CFR part 51, subpart G further
delineates the control strategy requirements that plans must meet, and
EPA has long required that all SIPs and control strategies reflect four
fundamental principles of quantification, enforceability,
replicability, and accountability.\5\ SO2 nonattainment
plans must consist of two components: (1) Emission limits and other
control measures that ensure implementation of permanent, enforceable,
and necessary emission controls, and (2) a modeling analysis that meets
the requirements of 40 CFR part 51, appendix W and demonstrates that
these emission limits and control measures provide for timely
attainment of the primary SO2 NAAQS as expeditiously as
practicable, but no later than the attainment date for the affected
area. In cases where the necessary emission limits have not previously
been made a part of the state's SIP or have not otherwise become
federally enforceable, the plan needs to include the necessary
enforceable limits in an adopted form suitable for incorporation into
the SIP in order for the plan to be approved by EPA. In all cases, the
emission limits and control measures must be accompanied by appropriate
methods and conditions to determine compliance with the respective
emission limits and control measures
[[Page 75275]]
and must be quantifiable (i.e., a specific amount of emission reduction
can be ascribed to the measures), fully enforceable (i.e., specifying
clear, unambiguous and measurable requirements for which compliance can
be practicably determined), replicable (i.e., the procedures for
determining compliance are sufficiently specific and objective so that
two independent entities applying the procedures would obtain the same
result), and accountable (i.e., source specific limits must be
permanent and must reflect the assumptions used in the SIP
demonstrations).
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\5\ Id. at 13567-13568.
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EPA's 2014 SO2 Guidance recommends that the emission
limits be expressed as short-term average limits not to exceed the
averaging time for the applicable NAAQS that the limit is intended to
help maintain (e.g., addressing emissions averaged over one hour for
the 2010 SO2 NAAQS), but it also describes the option to
utilize emission limits with longer averaging times of up to 30 days as
long as the state meets various recommended criteria.\6\ The 2014
SO2 Guidance recommends that, should states and sources
utilize longer averaging times (such as, for example, 24-hours or 30
days), the longer-term average limit should be set at an adjusted level
that reflects a stringency comparable to the 1-hour average limit at
the critical emission value shown to provide for attainment. Additional
discussion of EPA's rationale for approving longer-term average limits
in selected cases has been provided in several notices of proposed
rulemaking, for example for the Pekin, Illinois area (see 82 FR 46434,
Oct. 5, 2017), for the Steubenville, Ohio-West Virginia area (see 84 FR
29456, June 24, 2019), and for the Central New Hampshire area (see 82
FR 45242, Sep. 28, 2017).
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\6\ 2014 SO2 Guidance, 22-39.
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Attainment demonstrations for the 2010 1-hour primary
SO2 NAAQS must demonstrate future attainment and maintenance
of the NAAQS in the entire area designated as nonattainment (i.e., not
just at the violating monitor) by using air quality dispersion modeling
(see appendix W) to show that the mix of sources and enforceable
control measures and emission rates in an identified area will not lead
to a violation of the SO2 NAAQS. For the short-term (i.e.,
1-hour) standard, EPA believes that dispersion modeling, using
allowable emissions and addressing stationary sources in the affected
area (and in some cases those sources located outside the nonattainment
area that may affect attainment in the area) is technically
appropriate. This approach is also efficient and effective in
demonstrating attainment in nonattainment areas because it takes into
consideration combinations of meteorological and source operating
conditions that may contribute to peak ground-level concentrations of
SO2.
Preferred air quality models for use in regulatory applications are
described in appendix A of EPA's ``Guideline on Air Quality Models''
(appendix A of 40 CFR part 51, appendix W (``appendix W'')).\7\ In
general, nonattainment SIP submissions must demonstrate the adequacy of
the selected control strategy using the applicable air quality model
designated in appendix W.\8\ However, where an air quality model
specified in appendix W is inappropriate for the particular
application, the model may be modified or another model substituted, if
EPA approves the modification or substitution.\9\ In 2005, EPA
promulgated the American Meteorological Society/Environmental
Protection Agency Regulatory Model (AERMOD) as the Agency's preferred
near-field dispersion model for a wide range of regulatory applications
addressing stationary sources (e.g., in estimating SO2
concentrations) in all types of terrain based on an extensive
developmental and performance evaluation. Supplemental guidance on
modeling for purposes of demonstrating attainment of the SO2
standard is provided in appendix A of the 2014 SO2 Guidance.
Appendix A provides extensive guidance on the modeling domain, the
source inputs, assorted types of meteorological data, and background
concentrations. Consistency with the recommendations in the 2014
SO2 Guidance is generally necessary for the attainment
demonstration to offer adequately reliable assurance that the plan
provides for attainment.
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\7\ EPA published revisions to appendix W on January 17, 2017,
82 FR 5182.
\8\ 40 CFR 51.112(a)(1).
\9\ 40 CFR 51.112(a)(2); appendix W, section 3.2.
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The meteorological data used in the analysis should generally be
processed with the most recent version of AERMET, which is the
meteorological data preprocessor for AERMOD. Estimated concentrations
should include ambient background concentrations, follow the form of
the standard, and be calculated as described in EPA's August 23, 2010
clarification memorandum.\10\
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\10\ ``Applicability of Appendix W Modeling Guidance for the 1-
hr SO2 National Ambient Air Quality Standard'' (August
23, 2010).
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Of particular relevance to Wisconsin's submittal are requirements
in 40 CFR 51.100, generally referred to as the stack height
regulations. These regulations, which implement CAA section 123,
require that if the GEP stack height exceeds the height resulting from
the 40 CFR 51.100(ii)(2) formulae and is determined based on the
results of a special study, typically a fluid modeling or wind tunnel
study, then additional requirements relating to emissions control must
first be met. These additional requirements would result in a more
stringent limit than that which is proposed for the Ahlstrom-Munksjo
facility in the Wisconsin's Oneida County SO2 plan. The
history and nature of the stack height regulations are described in the
following section.
III. History and Nature of Stack Height Regulations
Given the significance of the stack height regulations for EPA's
review of Wisconsin's submittal, and given the distinctive nature of
these regulations, a discussion of the history of these regulations is
necessary to provide perspective on EPA's application of these
requirements. Prior to the enactment of the CAA Amendments of 1977,
some parties expressed the view that ``the solution to pollution is
dilution.'' This viewpoint in effect argues that meeting air quality
standards by building sufficiently tall stacks, thereby enhancing the
degree of dispersion between the time a plume is released and the time
the plume reaches ground level, should be an acceptable alternative to
meeting air quality standards by reducing emissions. Other parties
argued that dilution is not the solution to pollution, that the use of
excessively tall stacks without any reduction to the atmospheric
loading of pollutants should not be a permissible means for meeting air
quality standards. Congress ultimately adopted the latter perspective,
as reflected in its enactment of section 123 in its CAA Amendments of
1977. As discussed in a court ruling upholding this interpretation of
section 123, Congress ``refused to allow reliance'' on tall stacks
because ``dispersion techniques do not reduce the amount of pollution
in the air, but merely spread it around, exporting it to other areas .
. . and exposing previously pristine areas to contamination.'' Sierra
Club v. EPA, 719 F. 2d at 441 (D.C. Cir. 1983).
The pertinent text of CAA section 123(a) indicates that the degree
of emission limitation required for control of any air pollutant under
an applicable implementation plan shall not be affected in any manner
by so much of the stack height of any source as exceeds good
engineering practice (as determined under regulations
[[Page 75276]]
promulgated by the Administrator). EPA's regulations implementing
section 123 reside at 40 CFR 51.118-51.119, and in a series of
definitions at 40 CFR 51.100(ff)-(nn). EPA's most recently promulgated
regulations implementing section 123 were published on July 8, 1985 (50
FR 27892). The preamble of EPA's notice promulgating these regulations
help explain EPA's intent underlying its formulation of these
regulations.
The stack height regulations define several terms used in
evaluating whether or not a plan is consistent with the provisions in
section 123 and 40 CFR 51.118 prohibiting reliance on dispersion
techniques, as defined in 40 CFR (hh)(1)-(2). The pertinent terms
relate to creditable stack heights. GEP stack height is defined as the
greatest among three values, based on three defined approaches for
determining GEP stack height. The first approach, defined in 40 CFR
51.100(ii)(1), uses a minimum GEP height of 65 meters. The second
approach, defined in 40 CFR 51.100(ii)(2), defines GEP stack height by
applying one of two formulae, as applicable based on the age of the
stack, in which GEP stack height is calculated on the basis of building
dimensions that influence how tall a stack is routinely warranted to
avoid most of the downwash that the building creates. The first
formula, defining GEP stack height based on an old equation developed
for this purpose, is not germane to Wisconsin's plan. The second,
pertinent equation (in 40 CFR 51.100(ii)(2)(ii)) is that the GEP stack
height equals the height of the building plus 1.5 times the lesser of
the height or the width of the building. The third approach, set forth
in 40 CFR 51.100(ii)(3) and tied to the definitions of ``nearby'' and
``excessive concentration'' at 40 CFR 51.100(jj)(2) and (kk)(1),
respectively, uses neither of the formulae and defines GEP height based
on the results of a special study, typically a fluid modeling or wind
tunnel study, with the provision in section 51.100(kk)(1) that
additional requirements relating to emissions control must first be
met, namely control to the new source performance standard (NSPS) level
or an alternative rate established if the NSPS is demonstrated to be
infeasible. For clarity, this notice will describe the first and second
approach as relying on the formula GEP height and the third approach as
relying on the height determined by fluid modeling or wind tunnel
study. More detailed guidance on these analyses is provided in guidance
that EPA issued in conjunction with the stack height regulations.\11\
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\11\ Guidance on this and related topics is provided in
``Guidance for Determination of Good Engineering Practice Stack
Height (Technical Support Document for the Stack Height
Regulation),'' June 1985, EPA, Office of Air Quality Planning and
Standards, EPA-450/4-80-023R, available at https://www3.epa.gov/ttn/scram/guidance/guide/gep.pdf.
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In this third approach, the creditable stack height is defined in
40 CFR 51.100(ii)(3) as the height demonstrated by a fluid model . . .
which ensures that the emissions from a stack do not result in
excessive concentrations of any air pollutant as a result of
atmospheric downwash, wakes, or eddy effects created by the source
itself, nearby structures or nearby terrain features. ``Nearby'' is
defined in 40 CFR 51.100(jj)(2) as not greater than 0.8 km (\1/2\ mile)
with a set of exceptions applying to terrain features (see 40 CFR
51.100(jj)(2)). ``Excessive concentrations'' is then defined in 40 CFR
51.100(kk)(1) for sources seeking credit for stack height exceeding
[formula GEP height] as a maximum ground-level concentration due to
emissions from a stack due in whole or part to downwash, wakes, and
eddy effects produced by nearby structures or nearby terrain features
which individually is at least 40 percent in excess of the maximum
concentration experienced in the absence of such downwash, wakes, or
eddy effects and which contributes to a total concentration due to
emissions from all sources that is greater than an ambient air quality
standard. The allowable emission rate to be used in making
demonstrations under this part shall be prescribed by the new source
performance standard that is applicable to the source category unless
the owner or operator demonstrates that this emission rate is
infeasible. Where such demonstrations are approved by the authority
administering the SIP, an alternative emission rate shall be
established in consultation with the source owner or operator.
Thus, in cases where a source seeks credit for a stack height
greater than formula GEP stack height, the stack height regulations
require that the state first determine whether the air quality standard
can be attained by applying suitable emission controls with credit for
no more than formula GEP stack height. If so, then the facility does
not have ``excessive concentrations'' with the stack at formula GEP
height and no additional stack height is creditable. This feature is
discussed further in the preamble to the 1985 regulations, which
indicates that the EPA's 1976 stack height guidelines \12\ imposed
special conditions (the installation of control technology) on stacks
above formula height that were not imposed on lower stacks. The
legislative history of the 1977 CAA Amendments cautioned that credit
for stacks above formula height should be granted only in rare cases,
and the Court of Appeals adopted this as one of the keystones of its
opinion. The preamble to the 1985 regulations further indicated that
for these reasons, EPA is requiring sources seeking credit for stacks
above formula height to show by field studies or fluid modeling that
this height is needed to avoid a 40 percent increase in concentrations
due to downwash and that such an increase would result in exceedance of
air quality standards. Finally, the preamble to the 1985 regulations
indicated that this will restrict stack height credit in this context
to cases where the downwash avoided is at levels specified by
regulation or by act of Congress as possessing health or welfare
significance.
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\12\ These guidelines are available at https://nepis.epa.gov/Exe/ZyNET.exe/9100JWKU.txt?ZyActionD=ZyDocument&Client=EPA&Index=1976%20Thru%201980&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&UseQField=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5CZYFILES%5CINDEX%20DATA%5C76THRU80%5CTXT%5C00000016%5C9100JWKU.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=3.
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That is, if fluid modeling showed that downwash with a formula GEP
height stack increased concentrations by more than 40 percent but
suitable controls would provide for attainment (or if no modeling was
provided assessing whether suitable controls would provide for
attainment or if the state did not adopt limits requiring suitable
control), then the plan would not have justified a stack height above
formula GEP height as being creditable. In that case, the attainment
demonstration would be considered to rely on a prohibited dispersion
technique, in contravention of CAA section 123.
A common phrase in the debate leading to the 1985 regulations was
``control first.'' Advocates for control first, notably Natural
Resources Defense Council, Inc. (NRDC), urged that all candidates for
taller stacks first be required to implement aggressive emissions
control, and that sources only be granted credit for taller stacks if
such control does not suffice to resolve air quality problems. The
opposite
[[Page 75277]]
preference was to focus solely on air quality, to argue that EPA should
approve plans that resolve air quality problems with taller stacks
(particularly those plans that involve more than a 40 percent impact of
building downwash) without regard to the degree of control that the
source implements. EPA's 1985 regulations reflect a compromise between
these two positions, in which requirements for ``control first'' apply
to sources seeking credit for stacks taller than formula GEP height and
do not apply to sources with stacks at or below formula GEP height. The
U.S. Court of Appeals for the D.C. Circuit affirmed this compromise in
Natural Resources Defense Council v. Thomas, 838 F. 2d 1224 (D.C. Cir.
1988).
The preamble to the 1985 regulations provides further discussion of
the level of control that is mandated as a prerequisite for finding any
stack height greater than the formula GEP height to be creditable. As a
general matter, the NSPS associated with the subject source's source
category are presumed to be the level of control to be adopted and to
be used in any assessment of whether such emission controls and a
creditable stack height in excess of the formula height is needed to
eliminate any excessive concentrations (in combination with an
assessment of the percentage impact of downwash). However, the
regulations also provide the possibility of demonstrating that the NSPS
are infeasible at the source, in which case an alternate control
requirement must be adopted and used in evaluating whether the source's
controlled emissions and a stack height above formula GEP height may be
credited to avoid an excessive concentration. Footnote 6 of the 1985
preamble (50 FR 27898) states that EPA will rely on its Best Available
Retrofit Technology (BART) Guideline in reviewing any [demonstrations
of NSPS infeasibility] and alternative emission limitations. That is,
in cases where the NSPS is demonstrated to be infeasible, EPA will use
the criteria in the BART Guideline to determine whether the plan
adequately demonstrates the infeasibility of the NSPS and whether the
limit that the state adopts qualifies as a suitable limit to use in
evaluating whether excessive concentrations (i.e. violations of the air
quality standard) remain that might warrant a creditable stack height
that is higher than the formula GEP height. In either case, the
analysis of whether credit for stack height above formula GEP height is
warranted must be based on an assessment of whether the appropriately
limited allowable emissions would nevertheless result in violation of
the air quality standard. Since this demonstration must rely on
allowable emissions, the SIP must include the appropriate limit, either
the NSPS or a BART limit, as an adopted part of the plan. EPA's
approach to implementing these provisions was affirmed by the U.S.
Court of Appeals for the 9th Circuit, in Montana Sulphur & Chemical
Company v. USEPA, 666 F. 3d 1174 (9th Cir. 2012).
IV. Review of Modeled Attainment Demonstration
The majority of Wisconsin's submittal includes an assessment of the
air quality impacts Wisconsin expected to result from emissions limits
governing the Ahlstrom-Munksjo paper mill (formerly Expera Specialty
Solutions LLC (Expera)), which Wisconsin found to be the primary
SO2 source in the Oneida County nonattainment area based on
its AERMOD dispersion model. This source is the only source in Oneida
County listed in the 2017 National Emissions Inventory with more than
100 tons per year of SO2 emissions. The plan accounts for
two additional stationary sources, namely Red Arrow Products and the
Packaging Corporation of America (PCA), but the emissions from these
sources are subject to permanent, enforceable limits through existing
title I construction permit requirements. These sources have minimal
effect on area air quality, insofar as Red Arrow emits less than 10
tons per year, and PCA, which emits about 50 tons per year, is over 30
kilometers from the area of concern in Oneida County.
Wisconsin's Oneida County SO2 plan includes a discussion
of its modeling using AERMOD to determine the emissions that can be
emitted from the Ahlstrom-Munksjo facility while still attaining the
NAAQS (i.e. a modeled attainment demonstration). The model assumes
maximum allowable emissions from Red Arrow and PCA, the other
SO2 sources in the nonattainment area or within 50
kilometers of the nonattainment area, as allowed by their Title I
construction permits. This analysis used surface meteorological data
from the Rhinelander-Oneida County Airport (KRHI) and upper air data
from the Green Bay site. Although the Ahlstrom-Munksjo facility's
boiler B26 formula GEP stack height according to the State's submittal
is 75 meters, Wisconsin modeled the facility with a stack height of 90
meters, based on a series of wind tunnel studies conducted by
consultants to the facility showing that a 90 meter stack would reduce
downwash effects down to a 40 percent impact on concentrations.
Subsequently, Ahlstrom-Munksjo (formerly Expera) raised the stack from
63.7 meters to 90 meters. However, as detailed above, emissions control
requirements are a prerequisite to potentially receiving credit for a
stack height that exceeds the height resulting from the 40 CFR
51.100(ii)(2) formulae. These emissions control requirements (NSPS or
BART) would result in a more stringent limit than that which is
proposed for the Ahlstrom-Munksjo facility in Wisconsin's Oneida County
SO2 plan.
While many aspects of Wisconsin's modeling are consistent with the
recommendations of appendix W, the submittal relies on a stack height
and corresponding emission limitation that is contrary to and exceeds
what is creditable under EPA's stack height regulations. Wisconsin's
proposed GEP stack height exceeds formula GEP height without satisfying
the associated requirements for establishing suitable control
requirements and without demonstrating the degree to which a height
above formula GEP height (if any) is necessary to avoid violations with
application of the control requirements. Since this portion of the
submittal therefore cannot be approved, EPA is not providing a full
review of the various features of Wisconsin's attainment demonstration
for the Oneida County SO2 nonattainment area (e.g. the
methodology and parameters of the wind tunnel study with respect to
relevant EPA guidance, the stack-specific downwash algorithm developed
from the wind tunnel study and applied to Ahlstrom-Munksjo's boiler B26
stack in AERMOD in lieu of the traditional downwash algorithm utilized
in AERMOD, etc.).
V. SIP Strengthening Emission Limits
As noted above, Wisconsin's Oneida County SO2 plan
proposed a more stringent emission limit for the Ahlstrom-Munksjo
facility than that which previously applied. Historically, as part of
Wisconsin's Oneida County SO2 plan for the 1971 24-hour
SO2 NAAQS, Wisconsin issued Consent Order AM-94-38 with an
SO2 emission limit on Ahlstrom-Munksjo's (then Rhinelander
Paper's) coal-fired boiler, boiler B26, and EPA approved this order
into the Wisconsin SIP on December 7, 1994. See 59 FR 63046.\13\ The
existing SIP limit is 3.5 pounds (lbs) of SO2 per Million
British Thermal Units (MMBTU) averaged over 24 hours (1,050 lbs per
hour at the maximum operating
[[Page 75278]]
rate of 300 MMBTU per hour). As part of Wisconsin's Oneida County
SO2 plan (for the 2010 SO2 NAAQS), Wisconsin
issued Consent Order AM-15-01. AM-15-01 contains a requirement to raise
the flue gas stack S09 height for boiler B26 to a minimum of 296 feet
(90 meters) above ground level and establishes a more stringent
SO2 emission limit for boiler B26 than that which is
currently contained in the Wisconsin SIP under AM-94-38. The order
limits boiler B26 SO2 emissions to 3.00 lbs per MMBTU on a
24-hour basis (900 lbs per hour at the maximum operating rate) and
limits the maximum boiler load to 300 MMBTU per hour. The order carries
forward the SO2 emission limit, including the compliance
demonstration and recordkeeping requirements, from AM-94-38 on boiler
B28, which is that the sulfur content of distillate fuel fired in
boiler B28 shall not exceed 0.05 percent by weight. In its Oneida
County SO2 plan, Wisconsin requested that EPA approve
Wisconsin's nonattainment plan and withdraw AM-94-38 from the Wisconsin
SIP and replace it with AM-15-01. Given the stack height issue
identified above, EPA cannot approve AM-15-01 into the SIP. Therefore,
EPA is not proposing to approve AM-15-01 into the SIP, and EPA is not
proposing to withdraw AM-94-38 from the SIP. Rather, EPA is proposing
to approve only the following portions of AM-15-01, including the more
stringent SO2 emission limit on boiler B26, the maximum
boiler load limit for boiler B26, and the associated applicable
reporting, recordkeeping, and compliance demonstration requirements
including fuel sample collection, analysis, and retention, and
emissions monitoring, recordkeeping, reporting, and performance testing
requirements. Approval into the SIP would make these provisions
permanent and federally enforceable and strengthen the Wisconsin SIP.
Since this is not a relaxation of emissions limitations, sections
110(l) and 193 of the CAA are satisfied and no backsliding is occurring
as a result of this SIP revision.
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\13\ 59 FR 63046 references ``Rhinelander Paper'' the name and
ownership of the facility have since changed to Ahlstrom-Munksjo.
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The limit in Wisconsin's 2016 plan is 3.0 lbs per MMBTU on a 24-
hour rolling average basis, which Wisconsin considers to be equivalent
to a limit of 3.2 lbs per MMBTU on a 1-hour basis. As previously
stated, the longer-term average limit should be set at an adjusted
level that reflects a stringency comparable to the 1-hour average limit
at the critical emission value shown to provide for attainment.
Although EPA is not able to approve this limit as sufficient to provide
for attainment (since the limit does not provide for attainment without
credit for a taller stack than has been justified under EPA's stack
height regulations), EPA is proposing to approve the limit as SIP
strengthening, which is appropriate for limits that improve air quality
whether or not these limits suffice to provide for attainment in
accordance with CAA requirements.
EPA's 2014 SO2 Guidance discusses the option, under
specified circumstances, for emission limits with averaging times
greater than one hour. Wisconsin's plan relies on a limit expressed as
a 24-hour average. A critical criterion for such limits to be used for
attainment planning purposes is that the longer-term average limit be
comparably stringent to the 1-hour limit that the state has
demonstrated would provide for attainment. In this case, Wisconsin has
not properly demonstrated what 1-hour limit would provide for
attainment without relying on a dispersion technique, i.e. without
relying on credit for a taller stack than is creditable under the stack
height regulations. Therefore, it is unnecessary to evaluate whether
the State's 24-hour average limit is comparably stringent to the 1-hour
average. In this action, EPA is not reviewing the validity of the
adjustment factor that Wisconsin applied to determine the 24-hour
average limit it adopted, other than to conclude that the 24-hour
average limit of 3.0 lbs per MMBTU that the State adopted is more
stringent than the 24-hour average limit of 3.5 lbs per MMBTU currently
in the SIP.
VI. Review of Other Plan Requirements
A. Emissions Inventory
The emissions inventory and source emission rate data for an area
serve as the foundation for air quality modeling and other analyses
that enable states to estimate the degree to which different sources
within a nonattainment area contribute to violations within the
affected area and assess the expected improvement in air quality within
the nonattainment area due to the adoption and implementation of
control measures. The state must develop and submit to EPA a
comprehensive, accurate, and current inventory of actual emissions from
all sources of SO2 emissions in each nonattainment area, as
well as any sources located outside the nonattainment area that may
affect attainment in the area.\14\
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\14\ CAA section 172(c)(3).
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The base year inventory establishes a baseline that is used to
evaluate emission reductions achieved by the control strategy and to
assess RFP requirements. Wisconsin used 2011 as the base year for
emissions inventory preparation. At the time of preparation of the
plan, 2011 reflected the most recent emissions data available to the
State through its annual emissions reporting requirements during
periods with air quality violations. The emissions inventory includes
SO2 emissions from point sources, area sources, on-road
mobile sources, and off-road mobile sources. The point source emissions
were compiled from Wisconsin's Air Reporting System (ARS), and the
mobile source emissions were calculated using the MOVES2014 model. The
point source emissions are dominated by the emissions from the
Ahlstrom-Munksjo facility but also include a small amount of emissions
from the Red Arrow facility. Table 1 summarizes 2011 base year
SO2 emissions inventory data for the nonattainment area,
categorized by emission source type (rounded to the nearest whole
number).
Table 1--Summary of Base Year (2011) SO2 Emissions Inventory for the
Oneida County SO2 Nonattainment Area
------------------------------------------------------------------------
Emissions
Source (tpy)
------------------------------------------------------------------------
Point Sources............................................... 2,430
Area Sources................................................ 13
On-Road Mobile Sources...................................... 3
Off-Road Mobile Sources..................................... 5
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Total................................................... 2,451
------------------------------------------------------------------------
In addition to addressing its obligation to inventory emissions
within the nonattainment area, Wisconsin also evaluated whether any
point sources nearby but outside the nonattainment area might have
significant impacts. Based on this evaluation, Wisconsin identified
PCA, emitting about 50 tons per year and located over 30 kilometers
from the area of concern (in neighboring Lincoln County) as warranting
inclusion in the modeling. However, this source was not included in the
nonattainment area inventory summarized above.
EPA has evaluated Wisconsin's 2011 base year inventory and finds
this inventory and the methodologies used for its development to be
consistent with EPA guidance. As a result, EPA is proposing to
determine that the Oneida County SO2 plan meets the
requirements of CAA section 172(c)(3) and (4) for the Oneida County
SO2 nonattainment area.
[[Page 75279]]
B. RACM and RACT and Enforceable Emission Limitations and Control
Measures
CAA section 172(c)(1) states that nonattainment plans shall provide
for the implementation of all RACM as expeditiously as practicable
(including such reductions in emissions from existing sources in the
area as may be obtained through the adoption, at a minimum, of RACT)
and shall provide for attainment of the national primary ambient air
quality standards. CAA section 172(c)(6) requires plans to include
enforceable emissions limitations, and such other control measures as
may be necessary or appropriate to provide for attainment of the NAAQS.
Because the emissions limits for the Ahlstrom-Munksjo facility provided
in the Oneida County plan were not calculated in compliance with the
stack height regulations, and because as a result the plan cannot be
considered to provide an appropriate attainment demonstration, the area
does not demonstrate RACM/RACT or meet the requirement for necessary
emissions limitations or control measures. EPA is therefore proposing
that the State has not satisfied the requirements in CAA sections
172(c)(1) and (6) to adopt and submit all RACM/RACT and emissions
limitations or control measures as needed to attain the standard as
expeditiously as practicable.
C. Nonattainment New Source Review
Wisconsin has a fully approved nonattainment new source review
program. The State has implemented chapter NR 408 of the Wisconsin
Administrative Code to satisfy the nonattainment new source review
requirements. The program was approved by EPA into the SIP on January
18, 1995 (60 FR 3538), and the most recent update was approved on
November 5, 2014 (79 FR 193). NR 408 addresses nonattainment permitting
requirements for SO2 and other pollutants. Therefore, EPA is
proposing to affirm that the new source review requirements for the
area have been met.
D. Reasonable Further Progress
EPA's policy, that RFP for SO2 may be satisfied by
adherence to an ambitious compliance schedule, is based on the fact
that, ``for SO2 there is usually a single `step' between
pre-control nonattainment and post-control attainment.'' \15\ In this
instance, however, Wisconsin has not demonstrated that implementation
of the control measures required under the plan is sufficient to
provide for attainment of the NAAQS in the Oneida County SO2
nonattainment area consistent with EPA requirements (in particular
consistent with EPA regulations governing creditable stack heights).
Since the plan does not satisfy the prerequisites for a stack height
above formula GEP height to be creditable, and in the absence of a
demonstration that the limit in the plan provides for attainment at the
creditable (formula GEP) stack height, a compliance schedule to
implement these controls is not sufficient to provide for RFP.
Therefore, EPA proposes to conclude that the State has not satisfied
the requirement in section 172(c)(2) to provide for RFP toward
attainment in the Oneida County SO2 nonattainment area.
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\15\ 2014 SO2 Guidance, 40.
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E. Contingency Measures
In the Oneida County SO2 plan, Wisconsin explained its
rationale for concluding that the plan meets the requirement for
contingency measures. Specifically, Wisconsin relied on the 2014
SO2 Guidance, which notes the special circumstances that
apply to SO2 and explains on that basis why the contingency
requirement in CAA section 172(c)(9) is met for SO2 by
having a comprehensive program to identify sources of violations of the
SO2 NAAQS and to undertake an aggressive follow-up for
compliance and enforcement of applicable emission limits. Wisconsin
stated that if SO2 attainment is not measured in the Oneida
County SO2 attainment area, it will reevaluate the
stationary source SO2 emission limit requirements.
However, EPA's policy that a comprehensive enforcement program can
satisfy the contingency measures requirement for SO2 plans
is premised on the idea that full compliance with the controls and
limits required in the plan will assure attainment. In this case, as
explained above, Wisconsin's plan lacks necessary enforceable limits,
calculated in compliance with stack height regulations, at the primary
SO2 source in the area and therefore cannot be credited as
demonstrating attainment with the NAAQS. Consequently, vigorous
enforcement of the currently insufficient limits cannot be assumed to
constitute adequate contingency measures in the face of a NAAQS
violation. Therefore, EPA proposes that the State has not satisfied the
requirement in section 172(c)(9) to provide for contingency measures to
be undertaken if the area fails to make RFP or to attain NAAQS by the
attainment date.
F. Conformity
Generally, as set forth in section 176(c) of the CAA, conformity
requires that actions by Federal agencies do not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the relevant NAAQS. General conformity applies to Federal actions,
other than certain highway and transportation projects, if the action
takes place in a nonattainment area or maintenance area (i.e., an area
which submitted a maintenance plan that meets the requirements of
section 175A of the CAA and has been redesignated to attainment) for
ozone, particulate matter, nitrogen dioxide, carbon monoxide, lead, or
SO2. EPA's General Conformity Rule establishes the criteria
and procedures for determining if a Federal action conforms to the
SIP.\16\ With respect to the 2010 SO2 NAAQS, Federal
agencies are expected to continue to estimate emissions for conformity
analyses in the same manner as they estimated emissions for conformity
analyses under the previous NAAQS for SO2. EPA's General
Conformity Rule includes the basic requirement that a Federal agency's
general conformity analysis be based on the latest and most accurate
emission estimation techniques available.\17\ When updated and improved
emission estimation techniques become available, EPA expects the
Federal agency to use these techniques.
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\16\ 40 CFR 93.150 to 93.165.
\17\ 40 CFR 93.159(b).
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Transportation conformity determinations are not required in
SO2 nonattainment and maintenance areas. EPA concluded in
its 1993 transportation conformity rule that highway and transit
vehicles are not significant sources of SO2. Therefore,
transportation plans, transportation improvement programs, and projects
are presumed to conform to applicable implementation plans for
SO2.\18\
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\18\ 58 FR 3768, 3776 (January 11, 1993).
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VII. What action is EPA taking?
EPA is proposing to approve the base year emissions inventory and
to affirm that the new source review requirements for the area have
been met. EPA is also proposing to approve the Ahlstrom-Munksjo
SO2 emission limit as SIP strengthening. Specifically, EPA
is proposing to approve the specific portions of Wisconsin's
Administrative Order AM-15-01 identified above, including emission
limits and associated compliance monitoring, recordkeeping, and
reporting requirements. EPA is proposing to disapprove the attainment
[[Page 75280]]
demonstration, as well as the requirement for meeting RFP toward
attainment of the NAAQS, RACM/RACT, emission limitations as necessary
to attain the NAAQS, and contingency measures. Finalizing the proposed
disapproval will start sanctions clocks for this area under CAA section
179(a)-(b).
VIII. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference only the specific portions of Wisconsin Administrative Order
AM-15-01, effective January 15, 2016, as described in section V. above.
EPA has made, and will continue to make, these documents generally
available through www.regulations.gov and at EPA Region 5 Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information).
IX. 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 merely approves 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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because it is not a significant regulatory
action under Executive Order 12866;
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).
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: November 12, 2020.
Kurt Thiede,
Regional Administrator, Region 5.
[FR Doc. 2020-25827 Filed 11-24-20; 8:45 am]
BILLING CODE 6560-50-P