[Federal Register Volume 70, Number 82 (Friday, April 29, 2005)]
[Rules and Regulations]
[Pages 22259-22263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8598]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R05-OAR-2004-WI-0001; FRL-7901-2]


Approval and Promulgation of Implementation Plan; Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On August 29, 2003, EPA published a final rule approving the 
emission averaging program for existing sources subject to the state's 
rule limiting oxides of nitrogen (NOX) emissions in 
southeast Wisconsin. On November 10, 2004 (69 FR 65069), EPA published 
a direct final rule approving a revision to the state rule that 
modifies 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. On 
November 10, 2004 (69 FR 65117), EPA also published a proposed rule on 
this revision. The direct final rule stated that if EPA received an 
adverse comment, EPA would withdraw the direct final rule and address 
all public comments received in a subsequent final rule based on the 
proposed rule. EPA received an adverse comment and withdrew the direct 
final rule on January 10, 2005 (70 FR 1663). This rule responds to the 
comment received and announces EPA's final action.

DATES: This final rule is effective on May 31, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID

[[Page 22260]]

No. R05-OAR-2004-WI-0001. All documents in the docket are listed in the 
RME index at http://docket.epa.gov/rmepub/, once in the system, select 
``quick search,'' then key in the appropriate RME Docket identification 
number. 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 RME 
or in hard copy at the 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 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal 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?
II. Public Comment Received and EPA Response
III. What Action Is EPA Taking Today?
IV. Why Is the Request Approvable?
V. Statutory and Executive Order Review

I. General Information

A. Does This Action Apply to Me?

    This action revises two parts of the Wisconsin state implementation 
plan (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 counties in the Milwaukee-Racine and Sheboygan ozone 
nonattainment areas (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 and Sheboygan ozone nonattainment areas (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 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 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.

II. Public Comment Received and EPA Response

    Comment: Since everyone knows that gasoline mileage figures are 
taken under perfect circumstances and do not affect the ``real world'' 
of motoring, why doesn't the figure reflect worst-case conditions, i.e. 
with air conditioning on and rapid acceleration considered? These 
conditions occur all the time. Then we will be able to judge the auto's 
mileage fairly and not fairy tale figures from EPA. Protect the 
environment, don't deceive it.
    EPA Response: This comment is not relevant to this action, since 
this action pertains to controls on industrial facilities and not 
automobiles.

III. 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 which burn 
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 (DNR) 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 the 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 NR 
428.06(2)(e)(3). This revision does not change the population of the 
sources currently eligible under the existing SIP.

[[Page 22261]]

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 
which burn biologically derived gaseous fuel. This section of the rule 
applies to new sources installed after February 1, 2001, located in 
Kenosha, Milwaukee, Ozaukee, Racine, Washington, and Waukesha counties 
in southeastern Wisconsin.
    The Wisconsin 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 dry volume (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 
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 for 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 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 reciprocating 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, 
such as 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 September 9, 
2004, technical support document available from EPA Region 5, according 
to previously described procedures in Section I of this notice.

IV. 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.

V. 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.

[[Page 22262]]

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, 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 May 31, 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 dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: March 28, 2005.
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 (NOX) emissions as a 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 and Sheboygan ozone nonattainment areas (Kenosha, 
Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and 
Waukesha counties). The rule revision also creates a separate 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.
    Wisconsin rules 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,

[[Page 22263]]

December 2003, No.576 and effective January 1, 2004.

[FR Doc. 05-8598 Filed 4-28-05; 8:45 am]
BILLING CODE 6560-50-P