[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.

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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.
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    \1\ 85 FR 75273 (November 25, 2020).
    \2\ 79 FR 60064 (October 6, 2014).
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    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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