[Federal Register Volume 83, Number 116 (Friday, June 15, 2018)]
[Rules and Regulations]
[Pages 27910-27912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12810]



[[Page 27910]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2017-0157; FRL-9979-32--Region 5]


Air Plan Approval; Wisconsin; Regional Haze Progress Report

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
regional haze progress report under the Clean Air Act (CAA) as a 
revision to the Wisconsin state implementation plan (SIP). Wisconsin 
has satisfied the progress report requirements of the Regional Haze 
Rule. Wisconsin has also provided a determination of the adequacy of 
its regional haze plan with the progress report.

DATES: This final rule is effective on July 16, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2017-0157. 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. We recommend 
that you telephone Gilberto Alvarez, Environmental Scientist, at (312) 
886-6143 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Gilberto Alvarez, 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) 886-6143, 
[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:

I. Background
II. What is EPA's response to the comments?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

    States are required to periodically submit a progress report that 
evaluates progress towards the Reasonable Progress Goals (RPGs) for 
each mandatory Class I Federal area within the State and in each 
mandatory Class I Federal area outside the State which may be affected 
by emissions from within the state. See 40 CFR 51.308(g). States are 
also required to submit, at the same time as the progress report, a 
determination of the adequacy of the State's existing regional haze 
SIP. See 40 CFR 51.308(h). The first progress report is due five years 
after the submittal of the initial regional haze SIP.
    Wisconsin submitted its regional haze plan on January 18, 2012. EPA 
approved Wisconsin's regional haze plan into its SIP on August 7, 2012 
(77 FR 46952). Wisconsin submitted its five-year progress report on 
March 17, 2017. This is a report on the implementation of the regional 
haze plan and the progress made in the first implementation period 
towards RPGs for Class I areas outside of Wisconsin. Wisconsin does not 
have any Class I areas within its borders where visibility is an 
important value. This progress report SIP included a determination that 
Wisconsin's existing regional haze SIP requires no substantive revision 
to achieve the established regional haze visibility improvement and 
emissions reduction goals for 2018 for Class I areas impacted by 
Wisconsin emissions. EPA is approving Wisconsin's progress report on 
the basis that it satisfies the applicable requirements of the rule at 
40 CFR 51.308.
    EPA published a direct final rule (DFR) on October 20, 2017 (82 FR 
48766), approving the Wisconsin regional haze progress report as a 
revision to the Wisconsin SIP, along with a proposed rule (82 FR 
48780), that provided a 30-day public comment period. The DFR evaluated 
the Wisconsin submittal assessing its progress in implementing its 
regional haze plan during the first half of the first implementation 
period as well as the statutory and regulatory background for EPA's 
review of Wisconsin's regional haze plan. The DFR also provided a 
description of the regional haze requirements addressed in the 
Wisconsin progress report. The DFR serves as the detailed basis for 
this action. The adverse comments that EPA received are addressed 
below.

II. What is EPA's response to the comments?

    EPA received two relevant comments on the DFR. One commenter 
supported the approval of the regional haze 5-year progress report SIP. 
A second commenter expressed concern over Cross State Air Pollution 
Rule (CSAPR) issues and measures not approved into the SIP. We address 
the second commenter's concerns here.
    Comment--The commenter argued that EPA cannot approve the Wisconsin 
regional haze 5-year progress report because the State must revise its 
regional haze SIP to replace reliance on the Clean Air Interstate Rule 
(CAIR) and CSAPR with reliance on the ``CSAPR Update.'' The commenter 
stated that as CAIR and CSAPR are no longer in effect, these rules 
cannot be relied on for achieving reasonable progress goals, and that 
states cannot rely on federal implementation plans (FIPs) as measures 
must be contained in the SIP. The commenter also claimed that Wisconsin 
is taking credit for consent decrees, an Administrative Order on 
Consent for Georgia Pacific that is not approved into the SIP, and 
limits in title V permits that are not approved into the SIP. The 
commenter argued that because such measures are not federally 
enforceable, Wisconsin cannot take credit for them in its regional haze 
SIP. The commenter also argued that EPA cannot allow states to rely on 
trading programs to meet the source specific requirements for best 
available retrofit technology (BART).
    EPA's Response--In its regional haze SIP, Wisconsin relied on 
participation in CSAPR to satisfy certain of the BART requirements for 
its subject electric generating units and to satisfy reasonable 
progress requirements for these sources. In its progress report, 
Wisconsin notes that significant contribution towards reasonable 
progress has been made through implementation of CAIR and CSAPR in the 
State. Although EPA promulgated CSAPR on August 8, 2011 (76 FR 48208), 
the timing of CSAPR's implementation was impacted by several court 
actions. EPA began implementing CSAPR on January 1, 2015, and CSAPR is 
now in force. The commenter, however, argues that because CSAPR has 
been recently modified, ''CSAPR'' as referenced in the EPA-approved 
Wisconsin BART SIP element is no longer in effect. Similarly, the 
commenter also states that because CAIR is no longer in effect, the 
State may not rely on CAIR to achieve reasonable progress goals.

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    EPA disagrees with the commenter for several reasons. First, 
although CAIR is no longer in effect, it was in effect during part of 
the time period addressed by the progress report. Thus, Wisconsin 
appropriately described reductions from CAIR in summarizing the 
emissions reductions achieved during the initial years of the first 
implementation period. Second, contrary to the commenter's assertion, 
CSAPR remains in effect and will continue to result in emissions 
reductions in Wisconsin and other states subject to the rule. The D.C. 
Circuit affirmed CSAPR in most respects in 2015. EME Homer City 
Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015). In that 
decision, the court remanded, without vacating, some of the CSAPR 
budgets for a number of states. At this point, however, EPA has now 
taken all actions necessary to respond to that remand, and Wisconsin 
remains subject to CSAPR following EPA's actions. We also note that on 
September 29, 2017, EPA finalized a determination that the changes to 
the scope of CSAPR coverage following our actions on the remand do not 
alter EPA's conclusion that CSAPR remains better-than-BART. (82 FR 
45481). Accordingly, we do not agree that Wisconsin erred in relying on 
CAIR and CSAPR in its progress report for ensuring the necessary 
emission reductions.
    We also do not agree that States may not rely on FIPs in 
considering whether a regional haze implementation plan is sufficient 
to achieve the reasonable progress goals for nearby Class I areas. The 
Regional Haze Rule defines ``implementation plan'' for purposes of the 
visibility program to mean ``any [SIP], [FIP], or Tribal Implementation 
Plan.''. 40 CFR 51.301. Given this, measures in any issued FIP as well 
as those in a state's regional haze plan may be relied on in assessing 
the adequacy of the ``existing implementation plan'' under 40 CFR 
51.308(g)(6) and (h).
    The commenter also stated that Wisconsin is inappropriately taking 
credit in its progress report for consent decrees, an Administrative 
Consent Order for Georgia Pacific, and title V permits, none of which, 
the commenter claimed, are approved into the SIP. Again, we disagree 
with this comment for several reasons. First, with respect to Georgia 
Pacific, Wisconsin does describe the Administrative Consent Order for 
the source as a key element of its regional haze SIP; however, the 
Administrative Consent Order is incorporated by reference into the SIP. 
See 40 CFR 52.2570(c)(124)(i)(A). Second, it is unclear for which other 
consent decrees or title V permits Wisconsin is ``taking credit'' or in 
what way, but states in general are required to consider emission 
reductions due to ongoing air pollution control programs in developing 
a long-term strategy. 40 CFR 51.308(d)(3)(v). Given this, it is 
appropriate for a state to include a discussion in the progress report 
of the status of measures the state relied on in developing its long-
term strategy.
    Finally, the regulations governing progress reports do not include 
a requirement for states (or EPA) to ensure that all applicable 
regional haze requirements for the planning period have been met by the 
existing plan. As such, the comment raising concerns about the reliance 
on a regional trading program to satisfy the BART requirement raises 
issues outside the scope of this rulemaking. We do note, however, that 
40 CFR 51.308(e)(4) explicitly allows a state to rely on participation 
in a CSAPR FIP to address the BART requirements for electric generating 
units (EGUs). See Utility Air Regulatory Group v. EPA, 885 F.3d 714, 
721 (D.C. Cir. 2018)(upholding CSAPR as a BART alternative); see also 
National Parks Conservation Association v. McCarthy, 816 F.3d 989 (8th 
Cir. 2016).
    In summary, EPA disagrees that the points raised by the commenter 
prevent approval of the progress report EPA finds that Wisconsin's 
progress report satisfies 40 CFR 51.308.

III. What action is EPA taking?

    EPA is approving the Wisconsin regional haze progress report under 
the CAA as a revision to the Wisconsin SIP. EPA finds that Wisconsin 
has satisfied the progress report requirements of the Regional Haze 
Rule. Wisconsin has also met the requirements for a determination of 
the adequacy of its regional haze plan with its negative declaration 
submitted with the progress report.

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 this action does not involve technical standards; 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,

[[Page 27912]]

the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 14, 2018. 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 dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: June 4, 2018.
Cathy Stepp,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Section 52.2593 is added to read as follows:


Sec.  52.2593  Visibility protection.

    (a) Approval. Wisconsin submitted its regional haze plan to EPA on 
January 18, 2012, supplemented on June 7, 2012. The Wisconsin regional 
haze plan meets the requirements of Clean Air Act section 169B and the 
Regional Haze Rule in 40 CFR 51.308.
    (b) Approval. Wisconsin submitted its five-year progress report on 
March 17, 2017. The Progress Report meets the requirements of Clean Air 
Act sections 169A and 169B and the Regional Haze Rule in 40 CFR 51.308.

[FR Doc. 2018-12810 Filed 6-14-18; 8:45 am]
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