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[Federal Register: October 19, 2010 (Volume 75, Number 201)]
[Rules and Regulations]               
[Page 64155-64162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc10-7]                         

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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.

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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, 
aburano.douglas@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:

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
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