AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving elements of the State Implementation Plan (SIP) submission from Wisconsin regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 annual fine particulate matter (PM_2.5) National Ambient Air Quality Standard (NAAQS or standard). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. This action pertains specifically to infrastructure requirements in the Wisconsin SIP concerning interstate transport provisions.

DATES:

This final rule is effective on November 4, 2019.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2018-0840. 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.

FOR FURTHER INFORMATION CONTACT:

Samantha Panock, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8973, panock.samantha@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What is being addressed by this document?

II. What comments did we receive on the proposed action?

III. What action is EPA taking?

IV. Statutory and Executive Order Reviews

I. What is being addressed by this document?

On November 26, 2018, the Wisconsin Department of Natural Resources (WDNR) submitted a request to EPA for approval of its infrastructure SIP for the 2012 annual PM_2.5 NAAQS. On April 30, 2019, EPA proposed to approve the submission dealing with the first two requirements (otherwise known as “prongs” one and two) of the provision for interstate pollution transport under CAA section 110(a)(2)(D)(i), also known as the “good neighbor” provision.^[1]

The November 26, 2018 submittal included a demonstration that Wisconsin's SIP contains sufficient major programs related to the interstate transport of pollution. Wisconsin's submittal also included a technical analysis of its interstate transport of pollution relative to the 2012 PM_2.5 NAAQS which demonstrated that current controls are adequate for Wisconsin to show that it meets prongs one and two of the “good neighbor” provision. After review, EPA proposed to approve Wisconsin's request relating to prongs one and two of the “good neighbor” provision.

II. What comments did we receive on the proposed action?

Our April 30, 2019 proposed rule provided a 30-day review and comment period (84 FR 18191, April 30, 2019). The comment period closed on May 30, 2019. EPA received one anonymous submission with adverse comments. The adverse comments and EPA's responses are addressed below.

Comment: The commenter asserts that a fire that occurred at the U.S. Steel's Clairton Coke Works in Allegheny County, Pennsylvania (Clairton Coke Works) destroyed sulfur dioxide (SO₂) controls at the facility resulting in high SO₂ emissions. As a result, the commenter states that Allegheny County will likely not attain PM_2.5 standards as SO₂ is a PM_2.5 precursor. Therefore, the commenter asserts that Wisconsin should quantify contributions of PM_2.5 and PM_2.5 precursors to the Liberty monitor and further consider any potential controls to lower its contributions.

Response: EPA considered the comments and is finalizing its proposed determination that the current Wisconsin submittal meets the required infrastructure elements under CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two. EPA has two main reasons, each of which is sufficient, by itself, to support its action. First, there are no areas in Wisconsin or downwind of Wisconsin that are projected to have nonattainment or maintenance problems by 2021, which is the attainment deadline for 2012 PM_2.5 NAAQS nonattainment areas classified as Moderate. EPA discussed this point in detail in the proposal, 84 FR 18193-94. As EPA noted, the downwind area of primary concern is Allegheny County, Pennsylvania, due to monitor readings at the Liberty Monitor. EPA explained why that monitor is expected to attain and maintain the 2012 annual PM_2.5 NAAQS by 2021. EPA disagrees with the commenter assertion that a recent fire at Clairton Coke Works resulted in increased emissions of SO_2, a PM_2.5 precursor, which in the commenter's view, means that the Liberty monitor should not be projected to attain and maintain the NAAQS. Although recent fires at the Clairton Coke Works did result in temporary outage of SO₂ controls, the owner/operator of the facility has resumed operation of the controls (News Release, “Health Department Verifies Clairton Coke Works Pollution Controls Are Back Online,” Allegheny County (June 18, 2019), https://www.alleghenycounty.us/​Health-Department/​Resources/​Public-Health-Information/​News-Releases.aspx). In addition, the owner/operator is working with the Allegheny County Health Department to upgrade the plant's particulate matter controls, (https://www.alleghenycounty.us/​Health-Department/​Programs/​Air-Quality/​Public-Comment-Notices.aspx). Accordingly, EPA continues to take the position that the Liberty monitor is expected to show attainment and maintenance in 2021.

Second, EPA's proposal indicated that Wisconsin did not have the potential to contribute to the Liberty monitor in Allegheny County, Pennsylvania. While we did not receive adverse comments on that discussion in the proposal, for this final rulemaking we have reviewed and included the additional, supportive information. Accordingly, we conclude that Wisconsin's emissions will not be large enough to significantly contribute to nonattainment, or interfere with maintenance, at the Liberty monitor, even if that monitor was projected to have nonattainment or maintenance problems.

For the 1997 and 2006 PM_2.5 NAAQS, we used air quality modeling and an air quality threshold of one percent of the PM_2.5 NAAQS to link contributing states to projected nonattainment or maintenance receptors (76 FR 48237, August 8, 2011). That is, if an upwind state contributes less than the one percent screening threshold to a downwind nonattainment or maintenance receptor, we determine that the state is not “linked” and therefore does not significantly contribute to nonattainment or maintenance problems at that receptor. We have not set an air quality threshold for the 2012 PM_2.5 NAAQS and we do not have air quality modeling showing contributions to projected nonattainment or maintenance receptors for this NAAQS.

EPA believes that a proper and well-supported weight of evidence approach can provide sufficient information for purposes of addressing transport with respect to the 2012 PM_2.5 annual NAAQS. We rely on the Cross-State Air Pollution Rule (CSAPR) air quality modeling conducted for purposes of evaluating upwind state impacts on downwind air quality with respect to the 1997 annual PM_2.5 NAAQS of 15 micrograms per cubic meter (µg/m³) (as well as the 2006 24-hour PM_2.5 NAAQS, and 1997 Ozone NAAQS). Although not conducted for purposes of evaluating the 2012 annual PM_2.5 NAAQS, this modeling can inform our analysis regarding both the general magnitude of downwind PM_2.5 impacts and the downwind distance in which states may contribute to receptors with respect to the 2012 annual PM_2.5 NAAQS of 12 µg/m³. If the same one percent contribution threshold used in CSAPR for the 1997 and 2006 PM_2.5 NAAQS is applied to the 2012 PM_2.5 NAAQS, we could consider the fact that a state's impact was below 0.12 µg/m³. And in fact, as described in more detail below, the Wisconsin PM_2.5 contribution to the Liberty monitor in the CSAPR modeling was less than one percent of the 2012 PM_2.5 NAAQS. We also note that Wisconsin's submittal, as discussed below, relies on several factors to support a finding that emissions from Wisconsin sources do not significantly contribute to nonattainment, or interfere with maintenance of, the 2012 PM_2.5 NAAQS in downwind states.

We note that no single piece of information is by itself dispositive of the issue. Instead, the total weight of all the evidence taken together is used to evaluate significant contributions to nonattainment or interference with maintenance of the 2012 PM_2.5 NAAQS in another state.

Wisconsin's submittal used this weight-of-evidence approach to demonstrate that controls and emission limits already in place in Wisconsin are sufficient to ensure that emissions in the State will not significantly contribute to nonattainment, or interfere with maintenance, in any downwind state, including Allegheny County, Pennsylvania, for the PM_2.5 NAAQS. The EPA proposal stated that Wisconsin's nearest point to the Liberty monitor is about 500 miles away, and therefore precursor emissions are likely to be thoroughly dispersed over that distance. Moreover, EPA and Wisconsin did quantify Wisconsin's PM_2.5 and PM_2.5 precursor emissions and demonstrated an overall declining trend. As a regional pollutant, the majority of PM_2.5 is formed via reactions in the atmosphere between PM_2.5 precursors, including SO₂ and Nitrogen Oxides (NO_X). As noted in both the Wisconsin submittal and the EPA proposal, a review of the National Emissions Inventory data for Wisconsin shows that SO₂ emissions decreased by 68% and NO_X decreased by 50% from 2002 to 2014 in the State. Moreover, the Wisconsin submission reports PM_2.5 design values decreased by around 37% on average in most of the State between 2001-2003 and 2015-2017. The reductions in PM_2.5 precursor emissions and monitored PM_2.5 concentrations resulted from the implementation of an array of permanent and enforceable control measures that apply to Wisconsin sources. Emission control programs are implemented for each emission source sector for the PM_2.5 precursors, NO_X, Volatile Organic Carbons (VOCs), and SO₂, as well as direct PM_2.5. Some programs include Wisconsin NO_X Reasonably Available Control Technology (RACT), Federal NO_X transport rules, VOC RACT/Control Techniques Guidelines, National Emission Standards for Hazardous Air Pollutants, and Federal on-road mobile source control programs. Continued implementation of these measures will ensure that Wisconsin will not significantly contribute to any PM_2.5 nonattainment problems, or interfere with any maintenance problems, in other states.

Moreover, in its submittal, Wisconsin used modeling results to quantify the potential impact of Wisconsin's emissions on the Liberty monitor in Allegheny County, Pennsylvania. Wisconsin referenced the EPA modeling from previous PM_2.5 standards (1997 and 2006) to show past contributions have been under the one percent threshold. Specifically, Wisconsin examined the photochemical modeling results from EPA's original CSAPR analysis. In this modeling, EPA found that Wisconsin only contributed 0.10 µg/m³ of the PM_2.5 at the Liberty monitor in 2012. This amounts to 0.83% of the 2012 PM_2.5 NAAQS, below the one percent contribution threshold used in CSAPR for the 1997 and 2006 PM_2.5 NAAQS. This contribution-based analysis almost certainly overestimates Wisconsin's contribution since PM_2.5 precursor emissions from Wisconsin sources decreased significantly from 2012 to 2017 as mentioned previously. This analysis is evidence that Wisconsin does not contribute to PM_2.5 concentrations at the Liberty monitor, and therefore that the State will not significantly contribute to nonattainment or interfere with maintenance at the monitor, even if it were considered a downwind receptor.

In conclusion, the current Wisconsin submittal meets the required infrastructure elements under CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as proposed by EPA.

III. What action is EPA taking?

In this action, EPA is approving the portion of Wisconsin's November 26, 2018 submission certifying that the current Wisconsin SIP is sufficient to meet the required infrastructure requirements under CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above.

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 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 SIP approvals are exempted 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).

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 CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 3, 2019. 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. Section 52.2591 is amended by revising paragraph (h) and removing and reserving paragraph (k) to read as follows:

Footnotes