[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Rules and Regulations]
[Pages 64155-64162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26256]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-0587; EPA-R05-OAR-2009-0732; FRL-9205-8]
Approval of Implementation Plans of Wisconsin: Nitrogen Oxides
Reasonably Available Control Technology
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the Wisconsin State
Implementation Plan (SIP) submitted on June 12, 2007 and on September
14, 2009. These revisions incorporate provisions related to the
implementation of nitrogen oxides (NOX) Reasonably Available
Control Technology (RACT) for major sources in the Milwaukee-Racine and
Sheboygan County ozone nonattainment areas. EPA is approving SIP
revisions that address the NOX RACT requirements found in
the Clean Air Act (CAA). EPA is also approving other miscellaneous rule
changes that affect NOX regulations that were previously
adopted and approved into the SIP.
DATES: This final rule is effective November 18, 2010.
ADDRESSES: EPA has established the following dockets for this action:
Docket ID Nos. EPA-R05-OAR-2007-0587 and EPA-R05-OAR-2009-0732. All
documents in the docket are listed on the http://www.regulations.gov
Web site. 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 electronically
in http://www.regulations.gov or in hard copy 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. We recommend that you telephone Douglas Aburano,
Environmental Engineer, at (312) 353-6960, before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental
Engineer, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 353-6960,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. What is the background for this rule?
II. What comments did we receive on the proposed rule?
[[Page 64156]]
III. What actions is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background for this rule?
The CAA amendments of 1990 introduced the requirement for existing
major stationary sources of NOX in nonattainment areas that
are classified as moderate or above to install and operate
NOX RACT. Specifically, section 182(b)(2) of the CAA
requires states to adopt RACT for all major sources of VOC in ozone
nonattainment areas classified as moderate or above, and section 182(f)
requires that the RACT provisions for VOC also apply to major
stationary sources of NOX. ``RACT'' is defined as the lowest
emission limitation that a particular source is capable of meeting by
the application of control technology that is reasonably available
considering technological and economic feasibility (44 FR 53762).
Section 302 of the CAA defines a major stationary source as any
facility which has the potential to emit 100 tons per year of any air
pollutant. For serious ozone nonattainment areas, a major source is
defined by section 182(c) as a source that has the potential to emit 50
tons of NOX per year. For severe ozone nonattainment areas,
a major source is defined by section 182(d) as a source that has the
potential to emit 25 tons per year.
The requirements for NOX RACT can be waived under
section 182(f) of the CAA. See EPA memorandum dated December 16, 1993,
from John Seitz, Director, Office of Air Quality Planning and Standards
to Air Division Directors entitled, ``Guideline for Determining the
Applicability of Nitrogen Oxide Requirements Under Section 182(f).''
Waivers can be granted if the Administrator determines that any one of
the following tests is met:
1. In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
2. In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone
attainment in the area; or
3. In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air
quality benefits in the transport region.
Wisconsin received a NOX RACT waiver under the 1-hour
ozone standard on January 26, 1996 and, therefore, was not required to
adopt NOX RACT regulations for that standard. However, there
are areas in Wisconsin that are nonattainment for the 1997 8-hour ozone
standard. These areas were designated nonattainment on June 15, 2004
(69 FR 23947). Because Wisconsin does not have a waiver for the
NOX requirements for the 1997 8-hour ozone standard,
NOX RACT rules are required in the areas that are classified
as moderate or above.
Since the only areas in Wisconsin that are required to adopt
NOX RACT are classified as moderate for the 1997 8-hour
ozone standard, the rules that have been adopted only need to address
sources with the potential to emit 100 tons per year. The
NOX RACT rules were to have been submitted by September 15,
2006.
On June 12, 2007, Wisconsin submitted rules and supporting material
for addressing the NOX RACT requirements. The Wisconsin
Department of Natural Resources (WDNR) held a public hearing for these
rules on March 15, 2007. WDNR also provided a comment period that was
announced on February 2, 2007, and ended on March 19, 2007.
On September 14, 2009, Wisconsin submitted a supplemental SIP
revision and additional supporting material for addressing the
NOX RACT requirements. WDNR held a public hearing for these
rules on December 5, 2008, and also provided a comment period that was
announced on October 30, 2008, and ended on December 10, 2008.
On March 24, 2010, EPA proposed to approve Wisconsin's submittals
as meeting the section 182(f) requirements for NOX RACT. 75
FR 14116. In the same action, EPA also proposed to approve other non-
RACT NOX rules that Wisconsin submitted for approval into
the SIP. These non-RACT rules that Wisconsin submitted for approval
were primarily miscellaneous changes to the NOX rules that
were approved into the SIP to meet Reasonable Further Progress
requirements for the 1990 1-hour ozone standard. The primary background
for today's actions is contained in EPA's March 24, 2010, proposal to
approve Wisconsin's NOX RACT submittal.
II. What comments did we receive on the proposed rule?
EPA provided a 30-day review and comment period. The comment period
closed on April 12, 2010. During the comment period, we received
comments from three individuals. These comments are summarized and
addressed below.
Comment 1
A commenter notes that the correct reference in the Wisconsin
Administrative Code for the ``Clean Air Interstate Rule (CAIR) equals
RACT'' provision is not 428.25(3), as identified in the proposal to
approve the Wisconsin NOX RACT rules published on March 24,
2010 (75 FR 14116), but rather it is 428.25(2).
Response 1
EPA recognizes this typographical error and will correct the
reference in this final approval. EPA is, however, not rulemaking on
the CAIR equals RACT provisions at this time. See discussion under
Comment 2.
Comment 2
A commenter claims that the EPA's CAIR equals RACT determination
found in the ``Phase 2 of the Final Rule To Implement the 8-Hour Ozone
National Ambient Air Quality Standard--Notice of Reconsideration'' (72
FR 31730), ``is not mere ``guidance''; it was and is a rule that is
binding on EPA.'' The commenter goes on to state that, ``The D.C.
Circuit's remand of CAIR did nothing to impair the continued
applicability of the CAIR=RACT rule.''
The commenter, therefore, opposes EPA's decision to not rulemake on
Wisconsin's rule 428.25(2) and suggests that EPA should instead
promptly approve that provision as part of Wisconsin's NOX
RACT SIP.
Response 2
The D.C. Circuit remanded CAIR to EPA and, because there is
uncertainty regarding the rule that will replace CAIR, it is not
appropriate to move forward with the approval of this portion of
Wisconsin's NOX RACT rule. We should, however, point out
that this is not a disapproval of rule 428.25(2). We are merely
deferring making a decision now and will revisit rule 428.25(2) once
EPA promulgates a rule that replaces CAIR.
On July 6, 2010, EPA Administrator Lisa P. Jackson signed a
proposed replacement rule for CAIR. In the event that this CAIR
replacement rule is finalized, Wisconsin's rule 428.25(2) must
reference and conform to the new rule.
Comment 3
The commenter asserts that EPA has a well-known and longstanding
definition of RACT, citing various Federal Registers and a memorandum
from Roger Stelow, Assistant Administrator of Air and Waste Management,
United States Environmental Protection Agency, to Regional
Administrators (December 9, 1979). The definition of RACT that the
commenter cites is, ``the lowest emission limitation that a particular
source is capable of meeting by the application of control technology
that is reasonably available considering technological and
[[Page 64157]]
economic feasibility.'' (emphasis added). The commenter uses this point
as the basis for stating that, ``RACT must apply to each individual
source, based on the technological feasibility and cost of control at
that source.''
Response 3
While we do not disagree with the cited definition of RACT, we do
not view RACT as a program that should necessarily be evaluated on a
facility-by-facility basis. The Nitrogen Oxides Supplement to the
General Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990 speaks to this very issue. See section 4.2 General
Definition of RACT (57 FR 55624):
The EPA has defined RACT as the lowest emission limitation that
a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility (44 FR 53762; September 17,
1979). Although EPA has historically recommended source-category-
wide presumptive RACT limits, and plans to continue that practice,
decisions on RACT may be made on a case-by-case basis* * *
The emission limits found in Wisconsin's rule NR 428.22 ``Emission
limitation requirements'' are source-category wide limits that EPA has
traditionally accepted and approved, and there is no requirement for
RACT to be evaluated on a facility-by-facility basis other than as an
exception to the general rule.
Comment 4
The commenter points out that, ``RACT must be applied to sources
within the non-attainment area.''
Response 4
We agree with this comment and we would respond that the RACT
requirements apply in the nonattainment area.
Comment 5
The commenter states that, ``Other states are also requiring much
lower emission rates than proposed in DNR's draft rule. For example,
Texas adopted rules in 2001 that require coal-fired power plants to
achieve the following emission rates:
0.033 lb/MMBtu in the Dallas/Ft. Worth area on a 24-hour
average.
0.050 lb/MMBtu on a 30-day average for wall fired units in
the Houston/Galveston area.
0.045 lb/MMBtu on a 30-day average for tangential-fired
units.
30 Tex. Admin. Code Section 117.106.''
Response 5
We do not dispute that these limits are lower than the 0.10-0.18
lb/mmBtu limits on a 30-day average for coal-fired units that Wisconsin
has adopted. It should, however, be recognized that Texas adopted these
NOX limits for attainment purposes. Reductions necessary for
attainment will vary from nonattainment area to nonattainment area and
will often require greater reductions than RACT level reductions. Texas
recognizes that the limits the commenter pointed to are more stringent
than RACT levels. The rule immediately preceding the citation provided
by the commenter, 30 Tex. Admin. Code Code Section 117.105, ``Emission
Specifications for Reasonably Available Control Technology (RACT),''
contains Texas' emission limits adopted to meet RACT. The RACT limits
adopted by Texas for coal-fired units are in the 0.38-0.43 lb/mmBtu
range on a 24-hour rolling average basis. While not directly comparable
to the Wisconsin limits, because of the difference in averaging time,
the Texas RACT limits are clearly much less stringent than the Texas
limits the commenter pointed to which have been adopted for attainment
purposes.
RACT limits are not meant to be the lowest achievable emission
rates. The Nitrogen Oxides Supplement to the General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990
addresses the issue of an acceptable emission limit. See section 4.6
RACT for Certain Electric Utility Boilers (57 FR 55626), ``The EPA
expects States, to the extent practicable, to demonstrate that the
variety of emission controls adopted are consistent with the most
effective level of combustion modification reasonably available for its
individual affected sources.'' Presumptive limits (emission rates
expressed in a lb/mm Btu basis) were listed for various utility boilers
in this section:
0.45 for tangentially fired, coal burning,
0.50 for dry bottom wall fired (other than cell burner),
coal burning,
0.20 for tangentially fired, gas/oil burning, and
0.30 for wall fired, gas/oil burning.
These limits were based on combustion modifications, the control
technology that was deemed reasonably available at the time. Add-on
controls like selective catalytic reduction (SCR) and selective non-
catalytic reduction (SNCR) capable of achieving greater NOX
reductions than the presumptive NOX limits were also
evaluated but EPA chose to not base the presumptive limits on these
controls and EPA chose to not set the limits at a lower point at that
time.
To take into account the time that has passed since EPA set
presumptive NOX RACT limits for utility coal-fired boilers
and other NOX RACT technology guidance documents EPA issued
in the mid-1990s, Wisconsin evaluated various control technologies on a
source category-by-source category basis to determine what control
level and emission limits are reasonably available today. Wisconsin re-
evaluated coal-fired boiler limits and generally found that emission
limits based on add-on control technology like selective catalytic
reduction and selective non-catalytic reduction are now reasonably
available. While Wisconsin did not adopt limits based on the lowest
achievable emission rates based on these technologies, Wisconsin did
adopt limits considered to be reasonably available based on
capabilities and problems that are general to utility coal-fired
boilers in Wisconsin.
Wisconsin also evaluated the cost-effectiveness of the control
technologies on which the NOX RACT limits were based. As
described in the March 16, 1994, memorandum, ``Cost-Effective Nitrogen
Oxides (NOX) Reasonably Available Control Technology
(RACT)'' from E. Kent Berry, Acting Director of EPA's Air Quality
Management Division, ``NOX technologies with a cost-
effectiveness range that overlaps the $160 to $1,300 range should, at
minimum, be considered by States in the development of their
NOX RACT requirements.'' WDNR took the $1,300/ton figure and
grew this out to the 2005 equivalent of roughly $2,000/ton using the
consumer price index. WDNR took the additional step to increase the
reasonable cost-effectiveness of controls upwards to $2,500/ton for
evaluating RACT based on several considerations. The WDNR found $2,500/
ton to be consistent with costs considered under NOX RACT
programs in other states including the NOX RACT developed by
Illinois concurrently with the Wisconsin rules. The WDNR also found
$2,500/ton cost-effectiveness to encompass top-tier NOX
controls of selective catalytic reduction for most coal fire boilers,
which is the largest source category of NOX emissions
affected by the rules. Applying this level of cost-effectiveness across
the other affected source categories achieves comparability of RACT
controls in a manner consistent with the 1994 memorandum.
In its evaluation of RACT for sources in Wisconsin, WDNR examined
various control technologies that can reduce NOX emissions
and determined what is
[[Page 64158]]
reasonably achievable given the availability of these technologies, the
type of source, the level of control that is generally achievable, and
the costs associated with achieving the reductions associated with the
technology.
EPA reviewed the method used by Wisconsin to update RACT limits for
the 1997 8-hour ozone standard and found it to be appropriate.
Therefore, EPA is approving the NOX RACT limits adopted by
Wisconsin.
Comment 6
The commenter indicates that SCR is capable of achieving emissions
reductions from coal-fired power plants. Therefore, NOX RACT
emission rates should be lower than the limits adopted in Wisconsin's
NOX RACT rules.
Response 6
We do not dispute the fact that SCR is capable of achieving
NOX emission rates lower than the NOX RACT limits
adopted by Wisconsin. The question is whether or not Wisconsin
appropriately evaluated emission limits and the costs associated with
such controls on the affected facilities and arrived at limits suitable
for NOX RACT. We believe Wisconsin referred to the
appropriate EPA guidance and set the limits in accordance with this
guidance. See response to Comment 5 above.
Comment 7
The commenter suggests that the compliance margin used by Wisconsin
should not have been used to calculate the emission limits for the
sources subject to the NOX RACT rules. The commenter states
that, ``There are two reasons that the compliance margin is
unnecessary. First, there is a compliance margin built in to the
existing rate limitations. By assuming a lower than 90% emissions
control efficiency (some as low as 46%) for SCR technology, the rule
already provides significant leeway for achieving a cost-effective
emission rate * * * Second, the multi-unit and multi-facility averaging
provided for in the Rule provides an additional cushion for facilities
that are unable to meet the emission limitations.''
Response 7
Wisconsin has adopted definitive NOX limits for the
various types of electric generating units in the nonattainment area.
In its evaluation of the adopted limits, the State followed the
applicable EPA guidance. See Response 5. The limits that the State has
adopted are at an acceptable level.
Comment 8
The commenter states that, ``RACT is a measure intended to improve
local air quality * * * Thus, each plant affected by RACT must be
required to reduce pollution locally, and may not be allowed to trade
in pollution reductions in other areas to justify continued high
emission by certain plants.''
Response 8
We agree that NOX RACT is a measure intended to improve
local air quality (i.e., the air quality within the nonattainment
areas). We do not agree that sources subject to Wisconsin's
NOX RACT rules should not be allowed to comply through an
averaging program within the nonattainment areas. Wisconsin's
NOX RACT averaging provisions do not allow sources outside
of the moderate nonattainment areas to participate in this averaging
program. This ensures that the reductions of NOX will occur
in the nonattainment areas where these reductions are needed.
The Nitrogen Oxides Supplement to the General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990
clearly anticipates and even encourages states to adopt averaging plans
as a compliance option. See section 4.6 RACT for Certain Electric
Utility Boilers: ``EPA believes that the above emission rates are
appropriate for application to groups of boil[ers] on an areawide
average, Btu-weighted basis'' and ``* * * EPA encourages States to
structure their RACT requirements to inherently incorporate an
emissions averaging concept (i.e., installing more stringent controls
on some units in exchange for lesser controls on others). Therefore, in
the interest of simplifying State RACT determinations and enhancing the
ability of States to adopt market-based trading systems for
NOX, the State may allow individual owners/operators in the
nonattainment area (or, alternatively, Statewide within an ozone
transport region) to have emission limits which result in greater or
lesser emission reductions so long as the areawide emission rates
described above are met on a Btu-weighted basis.'' See 57 FR 55625.
Allowing emissions averaging to meet the NOX RACT rules
makes sense for reducing ozone in the nonattainment area in a cost-
effective way without compromising the environmental benefit of these
reductions. Moreover, Wisconsin has enhanced the environmental benefit
of the State's NOX RACT rules by requiring an additional 10%
reduction of emissions from those sources that are complying with the
NOX RACT requirements by using the multi-facility averaging
compliance provisions.
Comment 9
The commenter also states that multi-facility averaging threatens
environmental justice. The commenter points out that NOX is
a precursor not only to ozone but to fine particulates
(PM2.5) and that EPA has recently promulgated a new
NO2 standard. The commenter adds that because of the multi-
facility averaging provisions, Wisconsin Energy is allowed to put
greater controls on its Pleasant Prairie facility, located in Kenosha
County, that will, in effect, reduce the need for additional reductions
at its Valley Plant located in downtown Milwaukee where, the commenter
asserts, greater environmental protection is warranted.
Response 9
The commenter states that the Valley Power Plant is located in the
City of Milwaukee and that, because of compliance options in the rule
that allow multi-facility averaging, the Valley Power Plant has the
option of averaging its emission with other power plants that would
make more significant reductions of NOX.
Emissions from the Valley Power Plant do not impact any community
greater than any other power plants affected by this rule. The
compliance option allowing emissions averaging does not
disproportionately impact any group of people in any area. The rule is
required to reduce ozone precursors and the rule accomplishes this.
Everyone in the Milwaukee-Racine and Sheboygan nonattainment areas, as
well as downwind areas, will be breathing cleaner air because of the
NOX reductions required by this rule. The compliance option
of multi-facility averaging allows companies to make reductions within
their own fleet of facilities, which would result in lower emissions
than simply complying with the general provisions of the rule to meet
the NOX RACT requirements (See response to Comment 8), due
to the additional 10% emissions reduction requirement for facilities
using the multi-facility averaging provisions as the compliance option.
There will be no increases of emissions from the Valley Power Plant,
which seems to be of particular concern to the commenter. The facility
has, in fact, seen emissions reductions from new combustion
modifications that have been installed as a result of this rule.
Other than the fact that add-on controls are being placed on the
Pleasant Prairie Power Plant that are not being placed on the Valley
Power Plant,
[[Page 64159]]
it is unclear why the commenter believes there is a case of
environmental injustice. Table 1 shows the ozone design values for
various monitors in the southeast portion of Wisconsin. All of the
monitors are meeting the 1997 8-hour ozone standard of 0.08 ppm. In
fact, all of the monitors in Wisconsin are currently meeting the 1997
8-hour ozone standard. The monitor that is closest to the Valley Plant,
the 16th St. Health Center monitor, has the lowest monitored ozone
values in the southeast Wisconsin area. It is roughly 1.1 miles to the
south-southwest of the Valley Plant, the plant of greatest concern to
the commenter. For comparison, the monitor closest to the Pleasant
Prairie Plant has the highest values recorded in the southeast
Wisconsin area. The monitoring data do not indicate that ozone is a
problem in the immediate vicinity of the Valley Power Plant and that
greater controls should be placed on the Valley Power Plant.
It is not always the case that reductions will benefit the
immediate area where they are made. It is, however, clear that ozone
and its precursors tend to travel from south to north along the Lake
Michigan shoreline in Wisconsin. The high levels of ozone monitored in
Kenosha County at the Pleasant Prairie monitor are most likely due in
part to emissions from sources in the Chicago area. Similarly, if
reductions are made at the Pleasant Prairie Power Plant, the benefits
will be experienced downwind in the Milwaukee area (i.e., near the
Valley Power Plant). Similarly, reductions made at the Valley Power
Plant will likely reduce ozone downwind. The nearest monitor that would
be able to verify this is the WDNR's Regional Headquarters (WDNR SER
HQTRS) monitor that is roughly 2.2 miles to the north-northeast of the
Valley Power Plant.
Table 1
----------------------------------------------------------------------------------------------------------------
2004-2006 2005-2007 2006-2008 2007-2009
Monitor Design value Design value Design value Design value
(ppm) (ppm) (ppm) (ppm)
----------------------------------------------------------------------------------------------------------------
Pleasant Prairie........................ 0.083 0.085 0.078 0.076
Health Center........................... 0.068 0.070 0.063 0.064
WDNR SER HQTRS.......................... 0.074 0.077 0.068 0.068
----------------------------------------------------------------------------------------------------------------
The commenter also raises NO2 levels as a concern. As
the commenter states in the comment submitted, ``The Milwaukee County
design value for 2007-2009 is 47 ppb or 89 [mu]g/m\3\.'' However, 47
ppb is well below the National Ambient Air Quality Standard (NAAQS) for
NO2, which is 100 ppb. The NAAQS are established to protect
human health and the environment. With this in mind, monitors to
determine if areas are meeting or violating the NAAQS are required in
and around areas where people live, and these monitors are usually
placed at ground-level where people are breathing the ambient air.
The commenter claims to have modeled a violation of the
NO2 standard, but the commenter's modeling technique is
flawed. The commenter takes NO2 emissions concentrations
from the Valley Power Plant stack and adds them to background
concentrations to get a modeled ambient concentration that shows a
violation of the NO2 NAAQS. First, the emissions data that
the commenter uses are outdated (from 1998-2000) and these data fail to
reflect controls added since that time, the same controls the commenter
mentions in a separate part of its comments. The controls that were
added to the Valley Power Plant in 2008 are low NOX burners,
which reduced NOX emissions by roughly 45%. Second, adding a
source's estimated emissions concentrations to background concentration
for comparison does not accurately reflect the source's contribution to
ground-level NO2 levels for comparison to a NAAQS. It is
inaccurate to use a facility's modeled stack emissions and to add this
figure to a background concentration for comparison to a NAAQS, because
a facility's stack emissions are at a much higher concentration than
what a monitor would record at ground level. Because of dispersion and
other chemical reactions that take place in the atmosphere, monitored
levels of NO2 at ground level are much lower than the levels
the commenter used in their ``modeled'' violation of the NO2
NAAQS. This also explains why the actual monitored values (47 ppb) are
less than half of the NO2 NAAQS (100 ppb) where the
commenter claims to have modeled a violation. Because the Milwaukee-
Racine area is meeting both the ozone and NO2 standards, the
health of all people within this area is protected with respect to
these pollutants.
It is true that the Milwaukee area is in violation of the
PM2.5 standard. As is the case with ozone, however, the
formation of PM2.5 as a secondary pollutant resulting from
the NOX emissions from the Valley Power Plant is more likely
to impact communities farther downwind than communities in the
immediate vicinity. Conversely, the emissions and/or emissions
reductions from other power plants upwind of the Milwaukee area (e.g.,
the Pleasant Prairie Power Plant) are likely to have more of an impact
on the communities around the Valley Power Plant. Finally, because the
Milwaukee area has been designated as nonattainment for
PM2.5, Wisconsin is required to develop a plan to reduce
emissions of PM2.5 precursors to bring the area into
attainment with the PM2.5 standard. If reductions are needed
from the Valley Power Plant, they will be included in the
PM2.5 attainment demonstration that will be submitted to EPA
for approval. Such a demonstration would constitute a separate and
distinct rulemaking process than the evaluation of the NOX
RACT rules that we are approving today for purposes of attainment and
maintenance of the 1997 8-hour ozone standard.
Comment 10
The commenter states that, ``U.S. EPA Should Not Adopt DNR's
Reasonable Cost of Control Value of $2,500/ton.''
Response 10
EPA has never established a brightline dollars per ton amount as
RACT. RACT determinations are not solely based on a dollars per ton of
NOX reduced. RACT determinations take various factors into
account. As described in the March 16, 1994, memorandum, ``Cost-
Effective Nitrogen Oxides (NOX) Reasonably Available Control
Technology (RACT)'' from E. Kent Berry, Acting Director of EPA's Air
Quality Management Division, ``NOX technologies with a cost-
effectiveness range that overlaps the $160 to $1,300 range should, at a
minimum, be considered by States in the development of their
NOX RACT requirements.'' WDNR took the $1,300/ton figure and
grew this out to the 2005
[[Page 64160]]
equivalent of roughly $2,000/ton using the consumer price index. WDNR
took the additional step to increase the cost-effectiveness to $2,500/
ton as a reasonable measure for evaluating various controls that would
constitute RACT. In its evaluation of RACT for sources in Wisconsin,
WDNR examined various control technologies that can reduce
NOX emissions and determined what is reasonably achievable
given the availability of these technologies, the type of source, the
level of reduction that is generally achievable, and the costs
associated with achieving the reductions associated with the
technology.
We believe that Wisconsin established significantly stringent
limits using the $2,500/ton cost-effectiveness in its evaluation
process. Again, we would stress that the dollar per ton factor should
be weighed in combination with the actual limits adopted by a state to
determine RACT levels. In this case, the NOX limits that
have been adopted are deemed sufficient to meet RACT when considered
with the dollar per ton cost-effectiveness used to evaluate the
controls assumed to determine the actual limits.
Comment 11
The commenter states that Wisconsin proposed to require sources to
perform combustion tuning as part of the State's NOX RACT
requirements. These provisions were removed from the rules that were
adopted in final by Wisconsin. The commenter suggests that combustion
tuning should be a required part of a RACT determination for any steam
generator.
Response 11
WDNR proposed that sources should participate in combustion tuning,
since it provides energy and environmental benefits. However, the
provisions of the proposed rule dealing with combustion tuning were
controversial, because they were viewed by some as overly prescriptive
and requiring unnecessary recordkeeping. Considering the comments from
the industrial sector in Wisconsin, WDNR dropped combustion tuning
requirements from the NOX RACT rule. This provision would
not have accounted for very large emission reductions, because it would
have applied to smaller sources and some of the reductions will be
achieved through voluntary combustion tuning.
Comment 12
The commenter contends that the Valley Power Plant, located in
downtown Milwaukee, causes or contributes to violations of the 1-hour
NO2 NAAQS of 100 parts per billion (ppb) published in the
Federal Register on February 19, 2010. See 75 FR 6474.
Response 12
As the commenter points out, the most current (2007-2009) data
available show the Milwaukee area is well below the 100 ppb
NO2 NAAQS with a monitored value of 47 ppb. The purpose of
the NOX RACT rules, as set forth in section 182(f) of the
CAA, is to help areas attain and maintain the ozone standard. The
NOX RACT rules do not address the protection of any other
NAAQS. If additional NOX reductions are needed to attain or
maintain any other NAAQS, additional measures will be adopted for those
NAAQS.
There is no monitored violation of the NO2 NAAQS. If
there was a monitored violation of the NO2 NAAQS, controls
to address a NO2 nonattainment problem would be dealt with
through a separate NO2 SIP requirement.
EPA Conclusions Resulting From the Public Comments
After considering all public comments received and our responses to
those comments, we conclude that no issues have been raised that would
cause us to alter the conclusions set forth in the March 24, 2010,
proposed rule.
III. What actions is EPA taking?
After reviewing Wisconsin's NOX RACT SIP submittal, EPA
has determined that it meets the criteria set forth in section 182(f)
of the CAA. EPA has received comments on the proposed approval of the
NOX RACT rules and, after evaluating these comments, has
determined that no changes to the proposed approval made on March 24,
2010 (75 FR 14116) are necessary. Therefore, EPA is approving the
NOX RACT SIP submittal for the Milwaukee-Racine and
Sheboygan County 1997 8-hour ozone nonattainment areas. EPA is not,
however, rulemaking on Wisconsin NR 428.25(2). EPA will reconsider this
portion of the Wisconsin NOX RACT rules after EPA has
finalized a replacement rule for the remanded CAIR.
Non-RACT Portion of June 12, 2007 and September 14, 2009 Submittals
We are also approving miscellaneous changes to other NOX
rules previously approved into the SIP for ozone attainment purposes.
These non-RACT NOX rules, originally approved into
Wisconsin's SIP on November 13, 2001 (66 FR 56931), were submitted as
part of Wisconsin's reasonable further progress SIP for the 1990 1-hour
ozone standard. A description of the rules and the miscellaneous
changes being made to those rules can be found in the March 24, 2010,
proposed approval (75 FR 14116). The changes clarify the intent of the
existing rules and correct typographical errors.
IV. 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 Order
12866 (58 FR 51735, October 4, 1993);
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, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249,
[[Page 64161]]
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 20, 2010. 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, Nitrogen oxides, Ozone,
Volatile organic compounds.
Dated: September 14, 2010.
Bharat Mathur,
Acting Regional Administrator, Region 5.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart YY--Wisconsin
0
2. Section 52.2570 is amended by adding paragraph (c)(122) to read as
follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(122) On June 12, 2007, the Wisconsin Department of Natural
Resources submitted a State Implementation Plan revision request for
the state's nitrogen oxides (NOX) reasonably available
control technology (RACT) rules. This request was supplemented on
September 14, 2009. The state adopted NOX RACT rules to
satisfy section 182(f) of the Clean Air Act for the Milwaukee-Racine
and Sheboygan County areas that were designated as nonattainment for
the 1997 8-hour ozone standard and classified as moderate under that
standard.
(i) Incorporation by reference. The following sections of the
Wisconsin Administrative Code are incorporated by reference:
(A) NR 428.02 Definitions.
(1) NR 428.02(7e) ``Maximum theoretical emissions'' published in
the Wisconsin Administrative Register, on August 30, 2009, No. 644,
effective September 1, 2009.
(2) NR 428.02(7m)``Process heater'' as published in the Wisconsin
Administrative Register, on July 30, 2007, No. 619, effective August 1,
2007.
(B) NR 428.04 Requirements and performance standards for new or
modified sources.
(1) NR 428.04(1) and NR 428.04(3)(b) as published in the Wisconsin
Administrative Register, on August 30, 2009, No. 644, effective
September 1, 2009.
(2) NR 428.04(2)(h)1. and NR 428.04(2)(h)2. as published in the
Wisconsin Administrative Register, on July 30, 2007, No. 619, effective
August 1, 2007.
(C) NR 428.05 Requirements and performance standards for existing
sources.
(1) NR 428.05(1) and NR 428.05(4)(b)2. as published in the
Wisconsin Administrative Register, on August 30, 2009, No. 644,
effective September 1, 2009.
(2) NR 428.05(3)(e)1. to 4. as published in the Wisconsin
Administrative Register, on July 30, 2007, No. 619, effective August 1,
2007.
(D) NR 428.07 General Requirements. NR 428.07(intro.), NR
428.07(1)(a), NR428.07(1)(b)1., NR 428.07(1)(b)3., NR 428.07(3), NR
428.07(4)(c) as published in the Wisconsin Administrative Register, on
August 30, 2009, No. 644, effective September 1, 2009.
(E) NR 428.08 Specific provisions for monitoring NOX and
heat input for the purpose of calculating NOX emissions. NR
428.08(title), NR 428.08(2)(title) and NR 428.08(2)(f) as published in
the Wisconsin Administrative Register, on August 30, 2009, No. 644,
effective September 1, 2009.
(F) NR 428.09 Quarterly reports. NR 428.09(2)(a) as published in
the Wisconsin Administrative Register, on August 30, 2009, No. 644,
effective September 1, 2009.
(G) NR 428.12 Alternative monitoring, recordkeeping. NR 428.12 as
published in the Wisconsin Administrative Register, on August 30, 2009,
No. 644, effective September 1, 2009.
(H) NR 428.20 Applicability and purpose.
(1) NR 428.20(1) as published in the Wisconsin Administrative
Register, on August 30, 2009, No. 644, effective September 1, 2009.
(2) NR 428.20(2) as published in the Wisconsin Administrative
Register, on July 30, 2007, No. 619, effective August 1, 2007.
(I) NR 428.21 Emissions unit exemptions. NR 428.21 as published in
the Wisconsin Administrative Register, on July 30, 2007, No. 619,
effective August 1, 2007.
(J) NR 428.22 Emission limitation requirements.
(1) NR 428.22(1)(intro), NR 428.22(1)(a) to (c), NR 428.22(1)(e) to
(i), NR 428.22(2)(a) to (b) as published in the Wisconsin
Administrative Register, on July 30, 2007, No. 619, effective August 1,
2007.
(2) NR 428.22(1)(d) and NR 428.22(2)(intro) as published in the
Wisconsin Administrative Register
on August 30, 2009, No. 644, effective September 1, 2009.
(K) NR 428.23 Demonstrating compliance with mission limitations.
(1) NR 428.23(intro), NR 428.23(1)(a), NR 428(1)(b)2. to 8., and NR
428.23(2) as published in the Wisconsin Administrative Register, on
July 30, 2007, No. 619, effective August 1, 2007.
(2) NR 428.23(1)(b)1. and NR 428.23(1)(b)9. as published in the
Wisconsin Administrative Register on August 30, 2009, No. 644,
effective September 1, 2009.
(L) NR 428.24 Recordkeeping and reporting.
(1) NR 428.24(1)(intro), NR 428.24(1)(a), NR 428.24(1)(b)1. to 3.,
and NR 428.24(2) to (4) as published in the Wisconsin Administrative
Register, on July 30, 2007, No. 619, effective August 1, 2007.
(2) NR 428.24(1)(b)(intro) as published in the Wisconsin
Administrative Register on August 30, 2009, No. 644, effective
September 1, 2009.
(M) NR 428.25 Alternative compliance methods and approaches.
(1) NR 428.25(1)(intro), NR 428.25(1)(a)1.b., NR 428.25(1)(a)2. to
4.,
[[Page 64162]]
NR 428.25(1)(b) to (d), NR 428.25(2), NR 428.25(3)(a), and NR
428.25(3)(c) as published in the Wisconsin Administrative Register, on
July 30, 2007, No. 619, effective August 1, 2007.
(2) NR 428.25(1)(a)1.a. and c. and (3)(b) as published in the
Wisconsin Administrative Register on August 30, 2009, No. 644,
effective September 1, 2009.
(N) NR 428.26 Utility reliability waiver. NR 428.26 as published in
the Wisconsin Administrative Register, on July 30, 2007, No. 619,
effective August 1, 2007.
(ii) Additional material.
(A) NR 484.04 Code of federal regulations appendices. NR
428.04(13), (15m), (16m), (21m), (26m)(bm), (26m)(d) and (27) as
published in the Wisconsin Administrative Register, on July 30, 2007,
No. 619, effective August 1, 2007.
[FR Doc. 2010-26256 Filed 10-18-10; 8:45 am]
BILLING CODE 6560-50-P