[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)]
[Rules and Regulations]
[Pages 45348-45351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19161]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2017-0280; FRL-9982-60--Region 5]
Air Plan Approval; Wisconsin; 2017 Revisions to NR 400 and 406
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving certain
changes to the Wisconsin State Implementation Plan (SIP). This action
relates to changes in Wisconsin's construction permit rules as well as
the change in the definition for ``emergency electric generators'' in
NR 400. This request for the revision of the SIP was submitted by the
Wisconsin Department of Natural Resources (WDNR) on May 16, 2017.
DATES: This final rule is effective on October 9, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2017-0280. 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 Rachel Rineheart, Environmental Engineer, at (312)
886-7017 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Rachel Rineheart, Environmental
Engineer, Air Permits Section, Air Programs Branch (AR18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-7017, [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: is used, we mean EPA. This
supplementary information section is arranged as follows:
I. Review of State Submittal
II. What is our response to comments received on the proposed
rulemaking?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Review of State Submittal
This final rulemaking addresses the May 16, 2017 WDNR submittal for
a SIP revision, revising the rules in the Wisconsin SIP to align them
with Federal requirements. WDNR's submittal includes changes to the
term ``electric generator,'' replacing it with ``restricted internal
combustion engine'' as well as other minor language and administrative
changes. Specifically, NR 400.02(136m) replaces the existing definition
of emergency ``electric generator'' with a definition of ``restricted
use internal combustion engine,'' and NR 406.04(1)(w) amends the
exemption language for ``emergency electric generators,'' replacing it
with an exemption for ``restricted use reciprocating internal
combustion engines.'' NR 406.08(1) and NR 406.10 involve minor changes
to language, and NR 406.11(1) amends procedures for revoking
construction permits. These changes serve the purpose of aligning
Wisconsin's definitions with the Federal definitions.
WDNR is also requesting the removal of NR 406.16(2)(d) and NR
406.17(3)(e) from the SIP. These provisions address the eligibility of
coverage under general and registration construction permits based on
whether the project constituted a Type 2 action under the previous
chapter NR 150. However, the current chapter NR 150 was amended and no
longer defines or sets requirements for Type 2 actions. Removing these
provisions from Wisconsin's SIP ensures consistency with the Wisconsin
Environmental Protection Act (WEPA), and does not affect consistency
with the Clean Air Act (CAA). It is also consistent with Section 110(l)
of the CAA. Sources covered under registration and general permits are
still subject to all emission caps and applicable requirements
contained in those permits.
II. What is our response to comments received on the proposed
rulemaking?
EPA published a direct final rule on November 7, 2017 (82 FR
51575), approving Wisconsin's requested revisions to the SIP, along
with a proposed rule (82 FR 51594) that provided a 30-day public
comment period. EPA received two comment letters during the public
comment process. There were comments on the proposed approval from
Sierra Club and the Center for Biological Diversity combined and one
comment from an anonymous commenter. The letter from the anonymous
commenter was dated December 2, 2017 and the letter from Sierra Club
and the Center for Biological Diversity was dated December 7, 2017.
Consequently, the direct final rule on this approval was withdrawn on
December 21, 2017 (82 FR 60545). A summary of the comments received and
EPA's response follows.
A. Section 110(l) Determination
Comment 1: The revisions to the prior exemption for emergency
generators are a relaxation of the SIP and EPA cannot approve the SIP
relaxation without an analysis that the relaxation will not interfere
with attainment or maintenance of the National Ambient Air Quality
Standards (NAAQS) or any other CAA requirement pursuant to Section
110(l) of the CAA.
EPA Response: Section 110(l) states ``each revision to an
implementation plan submitted by a State under this chapter shall be
adopted by such State after reasonable notice and public hearing. The
Administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress (as defined in section 171 of this
title), or any other applicable requirement of this Act.'' Wisconsin
has adequately demonstrated that the
[[Page 45349]]
change in exemption will not interfere with attainment or maintenance
of the NAAQS. EPA does not interpret section 110(l) to require a full
attainment or maintenance demonstration before any changes to a SIP may
be approved. Generally, a SIP revision may be approved under section
110(l) if EPA finds it will at least preserve status quo air quality.
See Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir.
2006); GHASP v. EPA, No. 06-61030 (5th Cir. Aug. 13, 2008); see also,
e.g., 70 FR 53, 57 (Jan. 3, 2005), 70 FR 28429, 28430 (May 18, 2005)
(proposed and final rules, upheld in Kentucky Resources, which discuss
EPA's interpretation of section 110(l).\1\
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\1\ Discussed in Utah Approval, Disapproval, and Promulgation of
Air Quality Implementation Plans; Utah; Revisions to New Source
Review Rules, 76 FR 41712 at 41713 (Aug 15, 2011).
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As mentioned in Subsection A, above, Wisconsin has included two
categories of engines within its definition of Restricted Use
Reciprocating Internal Combustion Engines (RICE):
(a) One that is operated no more than 200 hours per year and that
meets the definition of emergency stationary RICE or black start engine
in 40 CFR 63.6675.
(b) One that is operated in accordance with the definition of
limited use RICE in 40 CFR 63.6675.
In order to evaluate whether the air quality will be maintained
despite the change in definition, we have addressed the two categories
of engines separately. The first category of engines within the
definition of emergency stationary RICE or black start engines, as
defined in 40 CFR 63.6675, operates no more than 200 hours per year (NR
400.02(136m)(a)). NR 406.04(1)(w) exempts restricted use reciprocating
internal combustion engines fueled by gaseous fuels, gasoline or a
clean fuel and which have a combined electrical output of less than
3000 kilowatts. This is consistent with the definition and exemption
for emergency electric generators prior to the revision, which referred
to an electric generator whose purpose is to provide electricity to a
facility if normal electrical service is interrupted and which is
operated no more than 200 hours per year. The prior exemption excluded
``emergency electric generators powered by internal combustion engines
which are fueled by gaseous fuels, gasoline or distillate fuel oil with
an electrical output of less than 3000 kilowatts.'' Since the size as
well as the number of operating hours per year of engines used for
emergency purposes remains the same before and after the revision,
there will be no additional impact to air quality as a result of this
revision.
The second category of engine within Wisconsin's definition of
restricted use RICE are limited use engines as defined in 40 CFR
63.6675 that operate less than 100 hours per year (NR 400.02(136m)(b)).
We reviewed information on how the State permitted limited use RICE
prior to the proposed exemption. Limited use RICE, as opposed to
restricted use RICE, was not a defined category and these engines were
permitted as stationary RICE with permit restrictions. However, this
provision in the Wisconsin code exempting limited use RICE from
obtaining a permit will not result in an increase in emissions beyond
what would result from construction or modification of these types of
engines through an individual minor new source review (NSR)
construction permit. Wisconsin has shown that this permit exemption is
consistent with conditions that would have been part of a construction
permit under the prior version of the state regulations.
For example, prior to the exemption, limited use RICE were included
in permits with a permit limitation or an operational restriction. The
permit may or may not have included a restriction in the number of
hours. Under the proposed exemption, however, sources will need to
operate for less than 100 hours per year in order to be eligible for
this exemption, in accordance with 40 CFR 63.6675. Therefore, in some
cases, this provision in the rule may be more protective of air quality
than an individual permit. An increase in the hours of operation to
over 100 hours per year will make the source ineligible for this
exemption, as per the definition of limited use engines. Further, an
increase to 100 hours per year or greater will make the source subject
to the requirements under the Federal National Emission Standards for
Hazardous Air Pollutants (NESHAP). An exemption from obtaining a permit
does not relieve the source from having to comply with the NESHAP.
Therefore, the NESHAP acts as a backstop to ensure emissions from these
engines are controlled. As mentioned above, EPA may approve a SIP
revision under section 110(l) if EPA finds it will at least preserve
status quo air quality. Kentucky Resources, supra.
B. Aligning With Federal Requirements
Comment 1: ``It is unclear what Federal requirements or Federal
program EPA is referencing throughout this notice''.
EPA response: In this action, EPA is referring to the Federal
definition of RICE under 40 CFR 63.6675. The Federal regulations do not
specifically define emergency generators. 40 CFR 63.6675 defines
internal combustion engines that are used for emergency purposes.
WDNR's revised definition conforms to the Federal definition of
internal combustion engines used for emergency purposes.
EPA does not find the need to re-propose this action, since
commenters had adequate notice of these Federal requirements. The
Federal citation is clearly mentioned in Wisconsin's revised definition
of RICE under NR 400.02(136m).
Comment 2: The Federal NESHAPs are not the same program as the NSR
program and are not designed to meet the same goals. Thus EPA's
statement that these changes ``serve the purpose of aligning the state
and Federal regulations'' is not grounded in the CAA.
EPA response: EPA understands that NESHAPs and the NSR program are
different programs, but that does not eliminate the value in aligning
state and Federal regulations. Consistency among state and Federal
regulatory requirements, whether from the same or different programs,
is valuable to achieve goals such as simplifying applicability and
regulatory requirements and promoting compliance. Such alignment need
not be mandated by the CAA to add such value, and EPA and states need
only assure that an alignment of state and Federal requirements across
programs is not inconsistent with the CAA requirements for either
program. The revisions approved in this action pass this test.
Further, this action is only aligning Wisconsin's definitions with
the Federal definitions, thereby aligning permitting exemptions with
certain NESHAP exemptions. The revision does not attempt to align the
regulatory requirements or the pollutants addressed by these programs
in a manner that is inconsistent with the CAA requirements for either
program.
C. Exclusions From Modifications, NR 406.04(4)(e)
The Wisconsin Code NR 406.04(4) has provisions that exclude certain
types of changes from constituting a modification. The purpose of these
exclusions is to minimize the administrative and economic burdens on
both the agency and low emitting sources without sacrificing
environmental protection. NR 406.04(4)(e) excludes from the definition
of modification sources that increase their hours of operation if: (1)
[[Page 45350]]
The increase is not prohibited by any permit, plan approval or special
order applicable to the source; and (2) the increase will not cause or
exacerbate the violation of an ambient air quality standard or ambient
air increment or violate an emission limit.
Comment 1: The exemption in NR 406.04(1)(w), when considered in
conjunction with the existing exemptions under NR 406.04(4)(e), could
allow the construction of a stationary reciprocating internal
combustion engine without a permit that could ultimately be allowed to
operate 8760 hours per year with no construction permit being issued
prior to review.
EPA response: 40 CFR 51.160 requires that a SIP set forth legally
enforceable procedures that enable the permitting authority to
determine whether the source is in violation of applicable portions of
the control strategy or would result in an interference with the
attainment or maintenance of a NAAQS. The exemption in NR 406.04(1)(w)
exempts restricted use RICE that (1) operated no more than 200 hours
per year and meet the definition of emergency stationary RICE in 40 CFR
63.6675; or (2) are operated in accordance with the definition of
limited use RICE in 40 CFR 63.6675, i.e. RICE that is operated no more
than 100 hours per year. An increase in hours of operation above these
thresholds, as applicable, will cause the source to no longer qualify
for the permit exemption and will thereby result in a SIP violation.
Further, the exemption in NR 406.04(1)(w)2. requires that records be
kept of total hours the engines operate each year to verify that the
units continue to meet the criteria for an exemption.
D. Air Quality Analysis
Comment 1: Wisconsin's exemption could apply to generators used for
peak shaving. Peaking units typically go through frequent startups and
shutdowns and thus could have disproportionately high emissions on a
short-term basis despite the limited operating hours per year. EPA must
require a worst case evaluation of impacts on the NAAQS--particularly
the 1-hour SO2 and 1-hour NO2 NAAQS.
EPA response: WDNR's definition of restricted use RICE mirrors the
Federal definition of emergency stationary RICE in 40 CFR 63.6675. This
definition, while allowing an engine to operate for up to 50 hours per
year for non-emergency purposes, clearly precludes the source from
using the engines for ``. . . peak shaving or non-emergency demand
response, or to generate income for a facility to an electric grid or
otherwise supply power as part of a financial arrangement with another
entity.'' Prior to adopting the proposed definition, Wisconsin did not
have a category called ``limited-use'' engines. An engine could either
be operated as a ``limited-use'' engine by restricting the number of
operating hours through a permit, or have permit limits based on its
usage. Engines that had restrictions on the number of operating hours
were required to maintain records of the number of hours they operate,
with no further requirements. Under the revised regulation, operating
hours equal to or greater than the applicable thresholds under the
definition will trigger a permit requirement and the requirements of
Wisconsin's minor source permit program. These permitting requirements
include an analysis of the impact on ambient air quality. Moreover, an
increase in the number of hours will trigger requirements under the
NESHAP. As discussed above in the context of section 110(l), EPA has
conducted an evaluation sufficient to support the conclusion that the
approved changes will preserve the status quo air quality.
III. What action is EPA taking?
EPA is approving the requested revisions to WDNR's SIP.
Specifically EPA is approving revisions to Wisconsin rules NR
400.02(136m), NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR
406.11(1). EPA is also approving the removal of NR 406.16(2)(d) and NR
406.17(3)(e) from the SIP.
IV. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the Wisconsin
Regulations described in the amendments to 40 CFR part 52 set forth
below. EPA has made, and will continue to make, these documents
generally available through www.regulations.gov and at the EPA Region 5
Office (please contact the person identified in the ``For Further
Information Contact'' section of this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action 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
[[Page 45351]]
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a copy of the rule, to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this action and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of the rule in the Federal
Register. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 6, 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,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds.
Dated: August 8, 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 52.2570 is amended by revising paragraph (c)(113)(i)(D), and
by adding paragraph (c)(137) to read as follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(113) * * *
(i) * * *
(D) NR 400.02(73m) and (131m), 406.02(1) and (2), 406.04(2m), NR
406.11(1)(g)(1), 406.11(3), 406.16, 406.17, 406.18, 407.02(3m),
407.105, 407.107, 407.14 Note, 407.14(4)(c), 407.15(8)(a) and
410.03(1)(a)(6) and (7) as created and published in the (Wisconsin)
Register, August 2005, No. 596, effective September 1, 2005. Sections
NR 406.16(2)(d) and NR 406.17(3)(e) were repealed in 2015 and are
removed without replacement; see paragraph (c)(137) of this section.
* * * * *
(137) On May 16, 2017, the Wisconsin Department of Natural
Resources submitted a request to revise Wisconsin's air permitting
rules NR 400.02(136m), NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR
406.11(1). These revisions replace the existing definition of
``emergency electric generator'' with the Federal definition of
``restricted internal combustion engine'', amends procedures for
revoking construction permits and include minor language changes and
other administrative updates. Wisconsin has also requested to remove
from the SIP NR 406.16(2)(d) and NR 406.17(3)(e), provisions affecting
eligibility of coverage under general and registration construction
permits, previously approved in paragraph (c)(113) of this section.
This action ensures consistency with Wisconsin Environmental Protection
Act (WEPA) laws.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code, NR 400.02(136m) as published in
the Wisconsin Administrative Register November 2015 No. 719, effective
December 1, 2015.
(B) Wisconsin Administrative Code, NR 406.04(1)(w), NR 406.08(1),
NR 406.10 and NR 406.11(1) as published in the Wisconsin Administrative
Register November 2015 No. 719, effective December 1, 2015.
[FR Doc. 2018-19161 Filed 9-6-18; 8:45 am]
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