[Federal Register Volume 69, Number 217 (Wednesday, November 10, 2004)]
[Rules and Regulations]
[Pages 65069-65073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24914]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[R05-OAR-2004-WI-0001; FRL-7829-4]


Approval and Promulgation of Implementation Plan; Wisconsin

AGENCY: Environmental Protection Agency (EPA).

[[Page 65070]]


ACTION: Direct final rule.

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SUMMARY: The EPA is approving revisions to Wisconsin's State 
Implementation Plan (SIP) regarding the control of nitrogen oxide 
(NOX) emissions submitted on May 25,2004. On August 29, 
2003, the EPA published a final rulemaking approving the emission 
averaging program for existing sources subject to the state's rule 
limiting NOX emissions in southeast Wisconsin. The SIP 
revisions modify language to clarify which sources are eligible to 
participate in the NOX emission averaging program. In 
addition, the revision creates a separate categorical emission limit 
for new combustion turbines burning biologically derived gaseous fuels.

DATES: This ``direct final'' rule is effective on January 10, 2005 
unless EPA receives adverse written comments by December 10, 2004. If 
EPA receives adverse comment, EPA will publish a timely withdrawal of 
the rule in the Federal Register and inform the public that the rule 
will not take effect.

ADDRESSES: Submit comments, identified by Regional Material in EDocket 
ID No. R05-OAR-2004-WI-0001, by one of the following methods: Federal 
eRulemaking Portal: http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    Agency Web site: http://docket.epa.gov/rmepub/index.jsp material in 
Edocket (RME), EPA's electronic public docket and connect system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    E-mail: [email protected].
    Fax: (312) 886-5824.
    Mail: You may send written comments to: J. Elmer Bortzer, Chief, 
Air Programs Branch, (AR-18J), Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    Hand delivery: Deliver your comments to: J. Elmer Bortzer, Chief, 
Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 
60604.
    Such deliveries are only accepted during the Regional Office's 
normal hours of operation, which are Monday through Friday, 8:30 a.m. 
to 4:30 p.m.excluding Federal holidays.
    Instructions: Direct your comments to Regional Materials in Edocket 
(RME) ID No. R05-OAR-2004-WI-0001. EPA's policy is that all comments 
received will be included in the public docket without change, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information of which the disclosure is restricted by 
statute. Do not submit information that you consider to be CBI or 
otherwise protected through Regional Material in Edocket (RME), 
regulations.gov, or e-mail. The EPA RME Web site and the federal 
regulations.gov Web site are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through RME or regulations.gov, your e-
mail address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of the related proposed rule which is 
published in the Proposed Rules section of this Federal Register.
    Docket: All documents in the electronic docket are listed in the 
Regional Materials in EDocket (RME) index at http://www.epa.gov/edocket. Although listed in the index, some information is not publicly 
available, i.e., Confidential Business Information (CBI) or other 
information of which the disclosure is restricted by statute. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
(We recommend that you telephone Charles Hatten, Environmental 
Engineer, at (312) 886-6031 before visiting the Region 5 office.) This 
facility is open from 8:30 AM to 4:30 PM, Monday through Friday, 
excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), EPA 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 
886-6031. [email protected].

SUPPLEMENTARY INFORMATION:
I. General Information
    A. Does This Action Apply To Me?
    B. How Can I Get Copies of This Document and Other Related 
Information?
    C. How and to Whom Do I Submit Comments?
II. What Action Is EPA Taking Today?
III. Why Is This Request Approvable?
IV. Statutory and Executive Order Review

I. General Information

A. Does This Action Apply to Me?

    This action is rulemaking on two revisions to the Wisconsin SIP for 
the control of NOX emissions from stationary sources as 
required by State rule NR 428. The rule applies to existing sources in 
eight of the counties in the Milwaukee-Racine area (Kenosha, Manitowoc, 
Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha 
counties), and to new sources in six of the eight counties (Kenosha, 
Milwaukee, Ozaukee, Racine, Washington, and Waukesha).
    One revision modifies language to clarify which units are eligible 
for demonstrating compliance through emissions averaging. The emissions 
averaging provisions apply only to existing electric utility boilers in 
the Milwaukee-Racine ozone nonattainment area (Kenosha, Manitowoc, 
Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha 
counties). The second revision creates a new NOX categorical 
limit for newly installed combustion turbines burning biologically 
derived gaseous fuel. Sources affected by the new categorical 
NOX limit are landfill operations, wastewater treatment 
plants and digester facilities specifically designed to generate 
gaseous fuel. The new NOX categorical limit for newly 
installed combustion turbines burning biologically derived fuel applies 
only to new sources located in Kenosha, Milwaukee, Ozaukee, Racine, 
Washington, and Waukesha counties in southeastern Wisconsin. The 
revisions have been adopted into the state administrative code and 
became effective on January 1, 2004.

B. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file for this action that is available both electronically 
and in hard copy form at the Regional office. The electronic public 
rulemaking file can be found under Regional Material in Edocket

[[Page 65071]]

(RME) ID No. R05-OAR-2004-WI-0001. The official public file consists of 
the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public rulemaking file does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The hard copy 
version of the official public rulemaking file is available for public 
viewing at the Air Programs Branch, Air and Radiation Division, EPA 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA 
requests that if at all possible, you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m. excluding federal holidays.
    2. Electronic Access. You may access this Federal Register document 
electronically through the regulations.gov Web site located at http://www.regulations.gov, where you can find, review, and submit comments on 
federal rules that have been published in the Federal Register, the 
government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office in 
the format that EPA receives them, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking Region 5 in Regional Material 
in Edocket ``R05-OAR-2004-WI-0001'' in the subject line on the first 
page of your comment. Please ensure that your comments are submitted 
within the specified comment period. Comments received after the close 
of the comment period will be marked ``late.'' EPA is not required to 
consider these late comments.
    For detailed instructions on submitting public comments and on what 
to consider as you prepare your comments see the ADDRESSES section and 
the section I General Information of the SUPPLEMENTARY INFORMATION 
section of the related proposed rule, which is published in the 
Proposed Rules section of this Federal Register.

II. What Action Is EPA Taking Today?

    EPA is approving, as part of the Wisconsin ozone SIP, certain 
sections of Wisconsin rule NR 428, Control of Nitrogen Oxide Emissions. 
These revisions refer to the addition of language to clarify which 
sources are eligible to participate in the emissions averaging program.
    In addition EPA is approving language that creates a separate 
categorical emission limit for new combustion turbines burning 
biologically derived gaseous fuel.

Clarification of Emissions Averaging Eligible Sources

    The current version of NR 428 contained in the SIP allows utilities 
to demonstrate compliance with NOX emission limitations by 
averaging emissions over multiple units. The rule defines eligible 
units through the combination of two provisions. NR 428.06(2)(a), the 
introduction to the averaging program, specifies that a unit must be 
subject to emission limitations for existing units under NR 428.03. NR 
428.06(2)(e)3 specifies that, to be eligible for the averaging program 
a unit must be allotted a portion of the total 15,912 tons of 
NOX emissions allocated by the department based on fuel 
consumption for 1995 through 1997. This mass of NOX 
emissions is the quantity determined by the Wisconsin Department of 
Natural Resources for electric utility units with emission limitations 
under NR 428.03 and which have operated in the ozone nonattainment area 
during the 1995 to 1997 time frame. Through these two provisions the 
affected sources are defined as 17 units at five facilities in the 
nonattainment area, owned by We-Energies, Alliant Energy, and Wisconsin 
Public Service.
    Section NR 428.06(2)(a) is amended to specify that an eligible unit 
must be subject to the emission limitations for utility boilers under 
NR 428.03(a). The amendment eliminates the need to reference two 
provisions in determining eligible sources.
    Eligible sources must still receive a proportion of the total 
15,912 tons of NOX emissions as stated under the NR 
428.06(2)(e)3. This revision does not change the population of the 
sources currently eligible under the existing SIP.

Categorical NOX Emission Limit for Newly Installed 
Combustion Turbines Fired With Biologically Derived Gaseous Fuel

    In this SIP revision, EPA is also approving a new categorical 
NOX emission limit for newly installed combustion turbines 
burning biologically derived gaseous fuel. This section of the rule 
applies to new sources installed after January 1, 2004, in six of the 
eight counties of the Milwaukee-Racine ozone nonattainment area: 
Kenosha, Milwaukee, Ozaukee, Racine, Washington, and Waukesha.
    The Wisconsin Department of Natural Resources (DNR) created this 
new categorical NOX emission limit because sources looking 
to install new combustion turbines would not be able to comply with the 
limit for natural gas-fired units that would otherwise apply under the 
provision of NR 428.04(2)(g)(1)(c). Currently, a newly installed simple 
cycle combustion turbine with a maximum design output less than 40 
megawatts and burning biologically derived gaseous fuel is subject to 
the SIP emission limitation of 25 parts per million (ppmdv) of 
NOX at 15 percent oxygen under NR 428.04(2)(g)(1)(c), which 
was established for burning any type of ``gaseous fuel''. In the 
original development of NR 428, the Wisconsin DNR anticipated 
biologically derived gaseous fuels being combusted in reciprocating 
engines and not in a combustion turbine. Therefore, biologically 
derived gaseous fuels were not addressed in establishing the combustion 
turbine emission limit of 25 ppmdv of NOX at 15 percent 
oxygen. Instead, the emission limit was established based solely on the 
combustion of fossil gaseous fuels such as natural gas or propane.
    The Wisconsin DNR has determined that a separate categorical 
standard of 35 ppmdv at 15 percent oxygen is appropriate for a 
combustion turbine burning landfill gas or any other biologically 
derived fuel. Comparable alternatives of controlling emissions from 
sources that generate biologically derived gaseous fuel, as currently 
allowed under the SIP, are likely to result in greater NOX 
emissions than the combustion turbine. Landfills and wastewater 
digester plants generate biologically derived gaseous fuel as a by-
product. Instead of destroying the gas

[[Page 65072]]

by flaring, these facilities prefer to generate electricity to drive 
their pumping and gas collection systems. The units capable of burning 
the biologically derived gaseous fuel and generating electricity are 
either a combustion turbine or spark ignition reciprocating engine. 
However, the actual NOX emission rate of the reciprocation 
engine is significantly higher than the new categorical limit of the 
combustion turbine.
    The use of a combustion turbine's higher energy efficiency and 
lower overall emissions potentially results in further environmental 
benefit. First, the turbine generates energy more efficiently than a 
reciprocating engine or power boiler burning biologically derived fuel. 
Second, the additional generated electricity for the same unit of fuel 
can potentially offset emissions from traditional electricity sources. 
(e.g. coal-fired utility plants).
    Therefore, the Wisconsin DNR has concluded that implementation of a 
separate categorical limit is necessary for the continued or increased 
use of combustion turbines firing biologically derived gaseous fuel. In 
addition, this action is likely to result in lower NOX 
emissions than originally allowed in the ozone attainment demonstration 
submitted to EPA in December, 2000. See 66 FR 56931, November 13, 2001. 
The new categorical NOX limit is expressed for both a simple 
cycle and combined cycle combustion turbine configuration.
    The limit is placed in the section of NOX emission 
limits for combustion turbines under provision NR 428.04(2)(g)4 as 
follows.
    NR 428.04(2)(g)4. `Units fired by a biologically derived gaseous 
fuel.' No person may cause, allow or permit nitrogen oxides to be 
emitted from a biologically derived gaseous fuel fired combustion 
turbine in amounts greater than those specified in this subdivision.
    a. 35 parts per million dry volume (ppmdv), corrected to 15% 
oxygen, on a 30-day rolling average basis for a simple cycle combustion 
turbine.
    b. 35 parts per million dry volume (ppmdv), corrected to 15% 
oxygen, on a 30-day rolling average basis for a combined cycle 
combustion turbine.
    With the creation of the new categorical emission limit, this 
revision amends the introductory language under provision NR 
428.04(2)(g)(1), to acknowledge that combustion turbines only burning 
biologically derived gaseous fuel are not subject to the more stringent 
general emission limitations for burning any type of ``gaseous fuels''. 
The amended language references the newly created subparagraph 4 and 
reads:

NR 428.04(2)(g)1. (intro.) `Gaseous fuel-fired units.' Except as 
provided in subds. 3. and 4., no person may cause, allow or permit 
nitrogen oxides to be emitted from a gaseous fuel-fired combustion 
turbine in amounts greater than those specified in this subdivision.

    Biologically derived gaseous fuel is defined under the newly 
created provision NR 428.02(1). The current provision of NR 428.02(1) 
is renumbered to NR 428.02(2). The newly created definition is as 
follows:

NR 428.02(1) ``Biologically derived gaseous fuel'' means a gaseous fuel 
resulting from biological processing of a carbon-based feedstock.

    Units subject to the new categorical limit for combustion turbines 
burning biologically derived gaseous fuel must meet the same 
compliance, monitoring, and reporting requirements established for all 
other new sources. These requirements have already been determined 
appropriate for combustion turbines and approved by EPA in the 
Wisconsin SIP.
    EPA's review of the revisions to Wisconsin's SIP regarding the 
control of NOX emissions is contained in a technical support 
document available from EPA Region 5, according to previously described 
procedures in ``Section I.B.'' of this notice.

III. Why Is the Request Approvable?

    EPA has concluded that the modification to Wisconsin's 
NOX SIP to clarify those units eligible for demonstrating 
compliance through emission averaging does not change the population of 
sources currently eligible under the existing SIP. The approval of the 
new categorical NOX emission limit will have no negative 
impact on the Wisconsin one-hour ozone attainment demonstration SIP. 
The new categorical standard will not result in any increase in overall 
NOX emissions. To the contrary, this action is anticipated 
to reduce NOX emission levels on a source-by-source basis 
below those allowed by the December 2000 SIP. The comparable 
alternative for burning biologically derived fuel is a spark ignition 
reciprocating engine with a higher NOX emission rate than 
the new categorical standard for combustion turbines. In addition, 
there is a general environmental benefit due to the use of combustion 
turbines, in most cases, generating energy (electricity and steam) more 
efficiently than reciprocating engines or power boilers.

IV. Statutory and Executive Order Review

Executive Order 12866: Regulatory Planning and Review

    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.

Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    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).

Regulatory Flexibility Act

    This action merely approves state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. 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.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose 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 (Public Law 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    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).

Executive Order 13132: Federalism

    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,

[[Page 65073]]

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.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    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.

National Technology Transfer Advancement Act

    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. Thus, 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.

Paperwork Reduction Act

    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.).

Congressional Review Act

    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 rule 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 January 10, 2005. 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, Intergovernmental relations, Nitrogen oxide, Ozone.

    Dated: October 8, 2004.
Norman Niedergang,
Acting Regional Administrator, Region 5.

0
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)(111)to read as 
follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (111) On May 25, 2004, Lloyd L. Eagan, Director, Wisconsin 
Department of Natural Resources, submitted a revision to its rule for 
control of nitrogen oxide emissions as a requested revision to the 
Wisconsin State Implementation Plan. The revision modifies language to 
clarify which sources are eligible to participate in the NOX 
emission averaging program to demonstrate compliance as part of the 
one-hour ozone attainment plan approved by EPA for the Milwaukee-Racine 
ozone nonattainment area (Kenosha, Manitowoc, Milwaukee, Ozaukee, 
Racine, Sheboygan, Washington, and Waukesha counties). The rule 
revision also creates a separate categorical emission limit for new 
combustion turbines burning biologically derived gaseous fuels. The new 
NOX categorical limit for newly installed combustion 
turbines burning biologically derived fuel applies only to new sources 
located in Kenosha, Milwaukee, Ozaukee, Racine, Washington, and 
Waukesha counties in southeastern Wisconsin.
    (i) Incorporation by reference.
    (A) NR 428.02(1)and (1m); NR 428.04(2)(g)(1); NR 428.04(2)(g)(4); 
and NR 428.06(2)(a) as published in the (Wisconsin) Register, December 
2003, No.576 and effective January 1, 2004.

[FR Doc. 04-24914 Filed 11-9-04; 8:45 am]
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