[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Proposed Rules]
[Pages 76430-76434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31191]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0467; EPA-R05-OAR-2012-0538; FRL-9765-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Prevention of Significant Deterioration Greenhouse Gas 
Tailoring and Biomass Deferral Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Wisconsin State 
Implementation Plan (SIP), submitted by the Wisconsin Department of 
Natural Resources (WDNR) to EPA on May 4, 2011, June 20, 2012, and 
September 28, 2012. The proposed revisions modify Wisconsin's 
Prevention of Significant Deterioration (PSD) program to establish 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to Wisconsin's PSD 
permitting requirements for their greenhouse gas (GHG) emissions. 
Additionally, these revisions propose to defer until July 21, 2014, the 
application of the PSD permitting requirements to biogenic carbon 
dioxide (CO2) emissions from bioenergy and other biogenic 
stationary sources in the State of Wisconsin. EPA is proposing approval 
of Wisconsin's revisions because the Agency has made the preliminary 
determination that these revisions are in accordance with the Clean Air 
Act (CAA) and EPA regulations regarding PSD permitting for GHGs.

DATES: Comments must be received on or before January 28, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0467, or EPA-R05-OAR-2012-0538 by one of the following 
methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (312)692-2450.
    4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs 
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Genevieve Damico, Chief, Air Permits Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only 
accepted during the Regional Office normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. The Regional Office official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID Nos. EPA-R05-OAR-
2011-0467, or EPA-R05-OAR-2012-0538. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, 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 email comment directly to EPA without 
going through www.regulations.gov your email 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 
this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy 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 Danny Marcus, Environmental Engineer, 
at (312) 353-8781 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-8781, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean

[[Page 76431]]

EPA. This supplementary information section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. Wisconsin's Submittals Regarding GHGs
III. What is the background for this proposed action?
IV. What is EPA's analysis of Wisconsin's proposed SIP revision?
V. What action is EPA Taking?
VI. Statutory and Executive Order Reviews.

I. What Should I Consider as I Prepare My Comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Wisconsin's Submittals Regarding GHGs

    In separate letters, dated May 4, 2011, June 20, 2012, and 
September 28, 2012, WDNR submitted requests to EPA for approval of 
revisions to the State's SIP to incorporate rule amendments adopted by 
Wisconsin related to GHG provisions.

A. Submittal on the Tailoring Rule Provisions

    The first set of rules, originally submitted on May 4, 2011, became 
effective in the Wisconsin Administrative Code on September 1, 2011. 
These amendments establish thresholds for GHG emissions in Wisconsin's 
PSD regulations at the same emissions thresholds and in the same time 
frames as those specified by EPA in the ``PSD and Title V Greenhouse 
Gas Tailoring; Final Rule,'' 75 FR 31514 (June 3, 2010), hereafter 
referred to as the ``Tailoring Rule,'' ensuring that smaller GHG 
sources emitting less than these thresholds will not be subject to 
permitting requirements for GHGs that they emit. The amendments to the 
SIP clarify the applicable thresholds in the Wisconsin SIP, address the 
flaw discussed in the ``Limitation of Approval of Prevention of 
Significant Deterioration Provisions Concerning Greenhouse Gas 
Emitting-Sources in State Implementation Plans Final Rule,'' 75 FR 
82536 (December 30, 2010) (the ``PSD SIP Narrowing Rule''), and 
incorporate State rule changes adopted at the State level into the 
Federally-approved SIP.

B. Submittal on the Deferral of CO2 Emissions From Biogenic Sources

    On June 20, 2012, WDNR submitted final adopted rules related to the 
deferral of CO2 emissions from bioenergy and other biogenic 
sources (biogenic CO2 emissions), when determining whether 
the modification of a stationary source would result in a net emissions 
increase that would trigger PSD thresholds, and require the application 
of Best Available Control Technology (BACT). The adopted rules became 
effective on April 16, 2012. The purpose of the amendment is to 
incorporate the Federal deferral for biogenic CO2 emissions 
into the Wisconsin's SIP provisions that govern GHG applicability.
    In today's action, pursuant to section 110 of the CAA, EPA is 
proposing to approve these revisions into the Wisconsin SIP.

III. What is the background for this proposed action?

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for this proposed action. More detailed 
discussion of the background is found in the preambles for those 
actions. In particular, the background is contained in what we call the 
GHG PSD SIP Narrowing Rule,\1\ and in the preambles to the actions it 
cites.
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    \1\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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A. GHG-Related Actions

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part are distinct from 
one another, establish the overall framework for this proposed action 
on the Wisconsin SIP. Four of these actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson 
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and 
the ``Tailoring Rule.'' Taken together and in conjunction with the CAA, 
these actions establish regulatory requirements for GHGs emitted from 
new motor vehicles and new motor vehicle engines; determine that such 
regulations, when they took effect on January 2, 2011, subject GHGs 
emitted from stationary sources to PSD requirements; and limit the 
applicability of PSD requirements to GHG sources on a phased-in basis. 
EPA promulgated this last action in the Tailoring Rule, which, more 
specifically, established appropriate GHG emission thresholds for 
determining the applicability of PSD requirements to GHG-emitting 
sources.
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    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
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    PSD is implemented through the SIP process. Pursuant to this 
process in December 2010, EPA promulgated several rules to implement 
the new GHG PSD SIP program. Recognizing that some states had approved 
SIP PSD programs that did not apply PSD to GHGs, EPA issued a SIP call 
and, for some of these states, a Federal Implementation Plan (FIP).\5\ 
Recognizing that other states had approved SIP PSD programs that do 
apply PSD to GHGs, but that do so for sources that emit as little as 
100 or 250 tons per year (tpy) of GHGs, and that do not limit PSD 
applicability to GHGs to

[[Page 76432]]

the higher thresholds in the Tailoring Rule, EPA issued the GHG PSD SIP 
Narrowing Rule. Under that rule, EPA withdrew its approval of the 
affected provisions within the SIPs to the extent those provisions 
covered GHG-emitting sources below the Tailoring Rule thresholds.
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    \5\ Specifically, by action dated December 13, 2010, EPA 
finalized a ``SIP Call'' that would require those states with SIPs 
that have approved PSD programs but do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. ``Action 
To Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (December 13, 2010). EPA has begun making findings of failure 
to submit that would apply in any state unable to submit the 
required SIP revision by its deadline, and finalizing FIPs for such 
states. See, e.g., ``Action To Ensure Authority To Issue Permits 
Under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Finding of Failure To Submit State 
Implementation Plan Revisions Required for Greenhouse Gases,'' 75 FR 
81874 (December 29, 2010); ``Action To Ensure Authority To Issue 
Permits Under the Prevention of Significant Deterioration Program to 
Sources of Greenhouse Gas Emissions: Federal Implementation Plan,'' 
75 FR 82246 (December 30, 2010). Because Wisconsin's SIP already 
authorizes WDNR to regulate GHGs once GHGs become subject to PSD 
requirements on January 2, 2011, Wisconsin is not subject to the 
proposed SIP Call or FIP.
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B. EPA's Biomass Deferral Rule

    On July 20, 2011, EPA promulgated the final ``Deferral for 
CO2 Emissions from Bioenergy and other Biogenic Sources 
Under the Prevention of Significant Deterioration (PSD) and Title V 
Programs'' (Biomass Deferral). The following is a brief discussion of 
the deferral. For a full discussion of EPA's rationale for the rule, 
see the notice of final rulemaking at 76 FR 43490 (July 20, 2011).
    The biomass deferral delays the consideration of CO2 
emissions from bioenergy and other biogenic sources (hereinafter 
referred to as ``biogenic CO2 emissions'') when determining 
whether a stationary source meets the PSD and Title V applicability 
thresholds, including those for the application of BACT \6\ until July 
21, 2014. Stationary sources that combust biomass (or otherwise emit 
biogenic CO2 emissions) and construct or modify during the 
deferral period will avoid the application of PSD to the biogenic 
CO2 emissions resulting from those actions. The deferral 
applies only to biogenic CO2 emissions and does not affect 
non-GHG pollutants or other GHGs (e.g., methane (CH4) and 
nitrous oxide (N2O)) emitted from the combustion of biomass 
fuel. Also, the deferral only pertains to biogenic CO2 
emissions in the PSD and Title V programs and does not pertain to any 
other EPA programs such as the GHG Reporting Program.
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    \6\ As with the Tailoring Rule, the Biomass Deferral addresses 
both PSD and Title V requirements. However, EPA is only taking 
action on WDNR's PSD program as part of this action.
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    Biogenic CO2 emissions are defined as emissions of 
CO2 from a stationary source directly resulting from the 
combustion or decomposition of biologically-based materials other than 
fossil fuels and mineral sources of carbon. Examples of ``biogenic 
CO2 emissions'' include, but are not limited to:
     CO2 generated from the biological decomposition 
of waste in landfills, wastewater treatment or manure management 
processes;
     CO2 from the combustion of biogas collected 
from biological decomposition of waste in landfills, wastewater 
treatment or manure management processes;
     CO2 from fermentation during ethanol production 
or other industrial fermentation processes;
     CO2 from combustion of the biological fraction 
of municipal solid waste or biosolids;
     CO2 from combustion of the biological fraction 
of tire-derived fuel; and
     CO2 derived from combustion of biological 
material, including all types of wood and wood waste, forest residue, 
and agricultural material.
    EPA recognizes that use of certain types of biomass can be part of 
the national strategy to reduce dependence on fossil fuels. Efforts are 
underway at the Federal, state and regional level to foster the 
expansion of renewable resources and promote bioenergy projects, 
increase domestic alternative energy production, enhance forest 
management and create related employment opportunities. Part of 
fostering this development is to ensure that those feedstocks with 
negligible net atmospheric impact not be subject to unnecessary 
regulation. At the same time, it is important that EPA have time to 
conduct its detailed examination of the science and technical issues 
related to accounting for biogenic CO2 emissions. The 
deferral is intended to be a temporary measure, in effect for no more 
than three years, to allow the Agency time to complete its work and 
determine what, if any, treatment of biogenic CO2 emissions 
should be in the PSD and Title V programs. The Agency plans to complete 
its science and technical review and any follow up rulemakings within 
the three year deferral period and believes that three years is ample 
time to complete these tasks. It is possible that the subsequent 
rulemaking, depending on the nature of EPA's determinations, would 
supersede the biomass deferral rulemaking and become effective in fewer 
than three years. In that event, Wisconsin may be required to revise 
its SIP accordingly.
    For stationary sources co-firing fossil fuel and biologically-based 
fuel, and/or combusting mixed fuels (e.g., tire derived fuels, 
municipal solid waste (MSW)), the biogenic CO2 emissions 
from that combustion are included in the biomass deferral. However, the 
fossil CO2 emissions are not included in the deferral. 
Emissions of CO2 from processing of mineral feedstocks 
(e.g., calcium carbonate) are also not included in the deferral. 
Various methods are available to calculate both the biogenic and fossil 
portions of CO2 emissions, including those methods contained 
in the GHG Reporting Program (40 CFR part 98). Consistent with the 
other pollutants subject to PSD, there are no requirements to use a 
particular method in determining biogenic and fossil CO2 
emissions.
    EPA's final biomass deferral rule is an interim deferral for 
biogenic CO2 emissions only and does not relieve sources of 
the obligation to meet the PSD permitting requirements for other 
pollutant emissions that are otherwise applicable to the source during 
the deferral period, or that may be applicable to the source at a 
future date pending the results of EPA's study and subsequent 
rulemaking action. This means, for example, that if the deferral is 
applicable to biogenic CO2 emissions from a particular 
source during the three year effective period and the study and future 
rulemaking do not provide for a permanent exemption from PSD permitting 
requirements for the biogenic CO2 emissions from a source 
with particular characteristics, then the deferral would end for that 
type of source and its biogenic CO2 emissions would have to 
be appropriately considered in any applicability determinations that 
the source may need to conduct for future stationary source permitting 
purposes, consistent with that subsequent rulemaking and the Final 
Tailoring Rule (e.g., a major source determination for Title V purposes 
or a major modification determination for PSD purposes). EPA also 
wishes to clarify that we did not require that a PSD permit issued 
during the deferral period be amended or that any PSD requirements in a 
PSD permit existing at the time the deferral took effect, such as BACT 
limitations, be revised or removed from an effective PSD permit for any 
reason related to the deferral or when the deferral period expires.
    40 CFR 52.21(w) requires that any PSD permit shall remain in 
effect, unless and until it expires or it is rescinded, under the 
limited conditions specified in that provision. Thus, a PSD permit that 
is issued to a source while the deferral was effective need not be 
reopened or amended if the source is no longer eligible to exclude its 
biogenic CO2 emissions from PSD applicability after the 
deferral expires. However, if such a source undertakes a modification 
that could potentially require a PSD permit and the source is not 
eligible to continue excluding its biogenic CO2 emissions 
after the deferral expires, the source will need to consider its 
biogenic CO2 emissions in assessing whether it needs a PSD 
permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the 
deferral for biogenic sources are beyond the scope of the biomass 
deferral action and this

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proposed approval of the deferral into the Wisconsin SIP, and will be 
addressed through subsequent rulemaking.

C. Wisconsin's Actions

    On July 28, 2010, WDNR provided a letter to EPA, in accordance with 
the Tailoring Rule, confirming that the State has the authority to 
regulate GHGs in its PSD program. The letter provided that WDNR 
intended to apply the meaning of the term ``subject to regulation'' 
that was established by EPA in the Tailoring Rule. WDNR explained that 
it would apply the term by revising chapters NR 400, 405, and 407 of 
the Wisconsin Administrative Code. See the docket for this proposed 
rulemaking for a copy of WDNR's letter.
    Wisconsin's initial revision consisted of emergency rules under the 
Wisconsin Administrative Code, since WDNR was unable to meet the 
January 2, 2011 effective date for applicability of PSD for GHG's. WDNR 
passed the emergency rules to implement the PSD program consistent with 
the Tailoring Rule on December 15, 2010.
    In the SIP Narrowing Rule, 75 FR 82536 (December 30, 2010), EPA 
withdrew its approval of certain provisions of Wisconsin's SIP, among 
other SIPs, to the extent that those provisions of the SIP apply PSD 
permitting requirements to GHG emissions from sources emitting at 
levels below those set in the Tailoring Rule.\7\ In this rule, EPA 
found that the affected states, including Wisconsin, had a flaw in 
their SIPs at the time they submitted their PSD programs, which was 
that the applicability of the PSD programs was potentially broader than 
the resources available to them under their SIP.\8\ Accordingly, for 
each affected state, including Wisconsin, EPA concluded that EPA's SIP 
approval action was in error, under CAA section 110(k)(6), and EPA 
rescinded its approval to the extent the PSD program applies to GHG-
emitting sources below the Tailoring Rule thresholds.\9\ EPA 
recommended that states adopt a SIP revision to incorporate the 
Tailoring Rule thresholds, thereby (i) assuring that under state law, 
only sources at or above the Tailoring Rule thresholds would be subject 
to PSD; and (ii) avoiding confusion under the Federally-approved SIP by 
clarifying that the SIP applies to only sources at or above the 
Tailoring Rule thresholds.\10\
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    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
    \8\ Id. at 75 FR 82542.
    \9\ Id. at 75 FR 82544.
    \10\ Id. at 75 FR 82540.
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    As a result, Wisconsin's current approved SIP provides the state 
with authority to regulate GHGs, but only at and above the Tailoring 
Rule thresholds; and requires new and modified sources to receive a PSD 
permit based on GHG emissions only if they emit at or above the 
Tailoring Rule thresholds.
    WDNR is currently authorized to regulate the GHG PSD regulations 
consistent with the Tailoring Rule at the State level since WDNR passed 
emergency rules consistent with the Tailoring Rule. The combination of 
these emergency rules and the SIP narrowing rule has allowed WDNR to 
implement the PSD GHG regulations consistent with the Tailoring Rule. 
At this time, WDNR is formally seeking to revise its SIP with permanent 
rules (identical to the emergency rules) for final approval by EPA. 
WDNR has formally amended regulations to incorporate the Tailoring Rule 
thresholds, and has submitted its amendments to EPA for approval.

IV. What is EPA's analysis of Wisconsin's proposed SIP revision?

    The regulatory revisions that WDNR submitted for approval on May 4, 
2011, June 20, 2012, and September 28, 2012, establish thresholds for 
determining which stationary sources and modifications become subject 
to permitting requirements for GHG emissions under WDNR's PSD program 
as well as incorporate the biomass deferral that delays until July 21, 
2014, the consideration of biogenic CO2 emissions when 
determining whether a stationary source meets the PSD thresholds. 
Specifically, the submittal regarding the implementation of the 
Tailoring Rule includes changes to WDNR's PSD regulations at NR 
400.02(74m), NR 400.03(3)(om), NR 400.03(4)(go) and (kg), NR 
405.02(28m), and NR 405.07(9).

A. WDNR's Revisions Regarding the Tailoring Rule Provisions

    Wisconsin is currently a SIP approved state for the PSD program, 
and has incorporated EPA's 2002 New Source Review (NSR) reform 
revisions, 67 FR 80186 (December 31, 2002), for PSD into its SIP, 73 FR 
76560 (December 17, 2008). In a letter provided to EPA on July 28, 
2010, WDNR notified EPA of its interpretation that Wisconsin currently 
has the authority to regulate GHGs under its NR 400 and NR 405 PSD 
regulations. The current WDNR program (adopted prior to the 
promulgation of EPA's Tailoring Rule) applies to major stationary 
sources (having the potential to emit at least 100 tpy or 250 tpy or 
more of a regulated NSR pollutant, depending on the type of source) or 
modifications undertaken in areas designated attainment or 
unclassifiable with respect to the NAAQS.
    Among the changes WDNR has undertaken, WDNR has revised NR 400 to 
add the definition of ``Greenhouse gases''. WDNR has also revised NR 
405 to define ``Subject to regulation under the Act'', and to establish 
the new tailoring rule thresholds for GHG applicability.

B. WDNR's Revisions Regarding the Deferral of CO2 Emissions From 
Biogenic Sources

    With respect to the changes undertaken by WDNR regarding the 
biomass deferral rule, WDNR has revised 285.60 and 285.63 of the Wis. 
State Statutes. Sections 285.60(3m) and 285.63(3m) have been created to 
establish that emissions of GHG's from biogenic CO2 
emissions are exempt from GHG PSD permitting consistent with 40 CFR 
51.66(b)(48). Consistent with Wisconsin's formal request within the 
June 20, 2012 submittal, we are proposing to approve only revisions 
with respect to PSD for the biomass deferral rule.

V. What action is EPA taking?

    EPA is proposing to approve Wisconsin's May 4, 2011, June 20, 2012, 
and September 28, 2012, SIP submittals, relating to PSD requirements 
for GHG-emitting sources. Specifically, Wisconsin's proposed SIP 
revisions establish appropriate emissions thresholds for determining 
PSD applicability to new and modified GHG-emitting sources in 
accordance with EPA's Tailoring Rule and biomass deferral rule. EPA has 
made the preliminary determination that these SIP submittals are 
approvable because they are in accordance with the CAA and EPA 
regulations regarding PSD permitting for GHGs.\11\
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    \11\ As explained on page 7, with respect to the first package 
for submittal regarding the Tailoring rule provisions, we are 
proposing approval based on the May 4, 2011 SIP submittal which was 
sent for parallel processing. EPA is awaiting the formal state-
effective SIP revision request from WDNR. EPA will only then be able 
to prepare a final rulemaking action for the SIP revision with 
respect to the Tailoring rule provisions.
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    If EPA does approve Wisconsin's changes to its air quality 
regulations to incorporate the appropriate thresholds for GHG 
permitting applicability into WDNR's SIP, then 40 CFR 52.2572(b), as 
included in EPA's SIP Narrowing Rule, which codifies EPA's limiting its

[[Page 76434]]

approval of WDNR's PSD SIP to not cover the applicability of PSD to 
GHG-emitting sources below the Tailoring Rule thresholds, is no longer 
necessary. In this proposed action, EPA is also proposing to amend 40 
CFR 52.2572 to remove this unnecessary regulatory language.

VI. 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 (Public Law 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, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, and Reporting and recordkeeping 
requirements.

    Dated: December 17, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-31191 Filed 12-27-12; 8:45 am]
BILLING CODE 6560-50-P