[Federal Register Volume 68, Number 69 (Thursday, April 10, 2003)]
[Rules and Regulations]
[Pages 17551-17553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8536]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI-113-7343A; FRL-7466-6]


Approval and Promulgation of State Implementation Plans; 
Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a revision to Wisconsin's State 
Implementation Plan (SIP) for the attainment of the one-hour ozone 
standard for the Milwaukee-Racine area. This SIP revision, submitted to 
EPA on December 16, 2002, provides new compliance options for sources 
subject to the state's rules limiting emissions of nitrogen oxides 
(NOX) from large electricity generating units in southeast 
Wisconsin. Under the revised SIP, sources would have the option of 
complying with emissions limits on a per unit basis or complying as 
part of an emissions averaging plan that also includes an emissions 
cap. In addition, the revision creates a new categorical emissions 
limit for new integrated gasification combined cycled units.

DATES: This direct final rule is effective on June 9, 2003 without 
further notice unless EPA receives adverse written comments by May 12, 
2003. If we receive adverse comment, EPA will publish a timely 
withdrawal of this direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: You should mail written comments to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), USEPA, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    A copy of the state's request is available for inspection at the 
above address.

FOR FURTHER INFORMATION CONTACT: Alexis Cain, Environmental Scientist, 
Regulation Development Section, Air Programs Branch (AR-18J), USEPA, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 
886-7018.

SUPPLEMENTARY INFORMATION:

I. What Action Is EPA Taking Today?
II. What Is EPA's Evaluation of This Program?
III. Administrative Requirements

I. What Action Is EPA Taking Today?

    EPA is approving, as part of the Wisconsin ozone SIP, rules that 
would allow sources to use emissions averaging and an emissions cap as 
a option for complying with ozone season limits on emissions 
(NOX). These limits apply to large electricity generating 
units in Southeast Wisconsin. EPA approved the rules setting these 
NOX emissions limits into Wisconsin's SIP on November 13, 
2001 (66 FR 56931). The limits are expressed in mass of allowable 
emissions per unit of heat input (pounds per million Btu).
    Emissions averaging will allow units subject to the NOX 
emissions limits of NR 428 of the Wisconsin Administrative Code to 
create emissions averaging plans in which the compliance of multiple 
sources would be assessed collectively. Participating sources would 
need to submit such plans to the Wisconsin Department of Natural 
Resources (WDNR) at least 90 days prior to the start of the ozone 
season, and would need to identify the participating units, their 
owners or operators, applicable emissions limitations, projected heat 
input and emissions rate, and projected mass emissions for the ozone 
season. The plan would establish an aggregate ozone season emissions 
rate limit for participating units through a formula that sums 
allowable emissions for each unit (based on projected heat input and 
each source's individual emissions rate), and divides it by the total 
projected heat input. To provide an environmental benefit from 
averaging, the formula subtracts 0.01 pounds/mmbtu from each unit's 
allowable emissions.

    Plan Emission Rate = {Sum [Projected Unit Heat Input x (Unit 
Emission Rate Limit--0.01){time} /(Sum of Projected Unit Heat 
Inputs)

    As a result, total emissions under an averaging plan would be lower 
than they would be if each unit demonstrated compliance on an 
individual basis. However, individual units would be allowed to exceed 
emissions rates specified in the NOX reduction rules, while 
other units would emit less than

[[Page 17552]]

allowed under the rules. Thus, averaging allows companies to minimize 
the cost of emissions reductions by allocating reductions at the units 
that can achieve them most inexpensively.
    In addition, units participating in an averaging plan are subject 
to a mass emission limitation, beginning with the 2008 ozone season. 
This feature of the program ``caps'' the aggregate ozone season 
NOX emissions of participating sources at a level that could 
not be exceeded regardless of heat input. This level is determined by 
the participating units' share of actual heat input during the 1995, 
1996 and 1997 ozone seasons, multiplied by 15,912 tons, an amount 
consistent with the state's one-hour ozone attainment demonstration.
    Within 60 days of the end of each ozone season, owners or operators 
of the participating units must submit compliance reports demonstrating 
compliance with the plan's emission rate and mass emission limit.

II. What Is EPA's Evaluation of This Program?

    EPA has determined that this SIP revision will not interfere with 
reasonable further progress or with attainment or maintenance of the 
National Ambient Air Quality Standards or any other requirement of the 
Clean Air Act. Emissions averaging programs are considered a type of 
economic incentive program. EPA's guidance on such programs is 
``Improving Air Quality with Economic Incentive Programs,'' EPA-452/R-
01-001, January 2001 (the EIP guidance).
    Wisconsin's NOX averaging program conforms with the EIP 
guidance, with one notable exception. The EIP guidance indicates that 
averaging should take place only among units that are under common 
ownership or control. This provision of the guidance is motivated by 
the concern that compliance and enforcement difficulties might result 
from averaging among sources under different ownership or control. 
Compliance in averaging programs depends not only on the emissions 
rates of the various sources, but also on the activity level (heat 
input) of higher-emitting sources relative to lower-emitting sources. 
Since activity levels are subject to constant change and are difficult 
to project, it could therefore be difficult for an averaging plan 
involving units under different ownership or control to ensure that 
compliance is maintained. It could be particularly difficult to 
maintain compliance if owners of units projected to have lower 
emissions rates projected higher activity levels than could actually be 
maintained.
    Wisconsin's NOX averaging program allows averaging among 
sources that are not under common ownership or control. Nonetheless, 
EPA is approving Wisconsin's program, for several reasons. Most 
important, beginning in 2008, Wisconsin's program includes an 
enforceable emissions cap in addition to emissions averaging. The cap 
is set at a level consistent with the one-hour ozone attainment plan 
for the Milwaukee-Racine area, and ensures that emissions cannot 
increase beyond levels consistent with attainment, regardless of 
changes in emissions rates.
    In addition, EPA finds that the operation of an averaging program 
with averaging across ownership will be of minimal risk in the 
individual case of Wisconsin's program. This program involves a limited 
number of existing sources, and new sources cannot use emissions 
averaging. Therefore, the State will receive only a small number of 
averaging plans, and it will be well able to review such plans ahead of 
time to ensure that projected activity levels are reasonable. Moreover, 
the sources that are potential participants in Wisconsin's averaging 
program all operate at levels close to capacity, and therefore have 
limited ability to project significant increases in activity levels. 
Therefore, EPA anticipates no problems resulting of averaging across 
sources under different ownership; nonetheless, EPA will evaluate as 
the program operates whether averaging across units under different 
ownership creates compliance problems or interferes with the 
achievement of expected reductions.
    Other provisions of Wisconsin's program include:
    [sbull] Excess emission reductions used in an averaging program 
must be reductions beyond those needed to meet all other state and 
federal requirements;
    [sbull] Emissions averaging will create an environmental benefit, 
since in calculating the aggregate allowable emission rate, the 
allowable emission rate of each source is reduced by 0.01 pounds per 
million btu;
    [sbull] If either the aggregate allowable emission rate or the mass 
ozone season cap is violated, each unit participating in the averaging 
plan is considered out of compliance for each day of non-compliance, 
and is potentially subject to penalties for each day of non-compliance;
    [sbull] NOX reductions used in an emissions averaging 
plan cannot be used for compliance with emissions limits established 
under the new source review or prevention of significant deterioration 
program, or with the NOX reduction requirements of the acid 
rain program;
    [sbull] If the mass ozone season cap for an averaging plan is 
violated, WDNR can require additional emissions reductions from 
participating units;
    [sbull] Emissions must be measured using continuous monitoring 
equipment;
    [sbull] WDNR will have the opportunity to review emissions 
averaging plans to determine their completeness prior to the beginning 
of the ozone season. Averaging plans must be submitted to WDNR 90 days 
prior to the beginning of the ozone season, and WDNR has 30 days to 
determine whether additional information is needed;
    [sbull] The public will be kept informed of potential changes in 
emissions caused by emissions averaging; operators of units involved in 
an emissions averaging plan are required to provide public notice at 
least 60 days prior to the start of the ozone season, and to provide 
copies of the plan to the public upon request.
In addition to the NOX averaging and emission cap 
provisions, EPA is approving a new categorical emission limit for new 
integrated gasification combined cycle units. WDNR created this limit 
because these sources will not be able to comply with the limit for 
natural gas-fired units that would otherwise apply. While this new 
limit is higher than the natural gas-fired limit, these types of 
sources will be taking the place of higher emitting coal-fired units 
and will, therefore, not affect emissions projections made earlier by 
the WDNR, which included growth of coal-fired units. The approval of 
this new limit will have no impact on the Wisconsin one-hour ozone 
attainment demonstration SIP.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state regulations as meeting federal requirements and 
imposes no additional requirements beyond those imposed by state 
regulations. Accordingly, the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this rule approves pre-existing requirements under state 
law and does not impose

[[Page 17553]]

any additional enforceable duty beyond that required by state law, it 
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).
    This rule also does not have tribal implications, because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the federal government and Indian tribes, or 
on the distribution of power and responsibilities between the federal 
government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Therefore, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding this action under section 801 because 
this is a rule of particular applicability.
    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 June 9, 2003. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Nitrogen oxides, Reporting and recordkeeping requirements.

    Dated: March 6, 2003.
Jerri-Anne Garl,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, title 40 of 
the Code of Federal Regulations 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)(108), to read as 
follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (108) On December 16, 2002, Lloyd L. Eagan, Director, Wisconsin 
Department of Natural Resources, submitted revised rules to allow use 
of NOX emissions averaging for sources subject to 
NOX emission limits in the Milwaukee-Racine area. The 
revised rules also establish a NOX emissions cap for sources 
that participate in emissions averaging, consistent with the emissions 
modeled in Wisconsin's approved one-hour ozone attainment demonstration 
for the Milwaukee-Racine area. The rule revision also creates a new 
categorical emissions limit for new integrated gasification combined 
cycle units.
    (i) Incorporation by reference.
    (A) NR 428.02(6m) as published in the (Wisconsin) Register, 
November 2002, No. 563 and effective December 1, 2002.
    (B) NR 428.04(2)(g)(3) as published in the (Wisconsin) Register, 
November 2002, No. 563 and effective December 1, 2002.
    (C) NR 428.06 as published in the (Wisconsin) Register, November 
2002, No. 563 and effective December 1, 2002.

[FR Doc. 03-8536 Filed 4-9-03; 8:45 am]
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