[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Rules and Regulations]
[Pages 72976-72979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28727]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2014-0206; FRL-9920-20-Region 5]


Approval and Promulgation of Implementation Plans; Wisconsin; 
Nitrogen Oxide Combustion Turbine Alternative Control Requirements for 
the Milwaukee-Racine Former Nonattainment Area

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On February 24, 2014, the Wisconsin Department of Natural 
Resources (WDNR) submitted revisions to the limits found in its 
nitrogen oxides (NOX) combustion turbine rule for the 
Milwaukee-Racine area formerly nonattainment for the 1997 ozone 
standard. This revision is contained in ``2013 Wisconsin Act 91--Senate 
Bill 371,'' which provides for alternative NOX requirements, 
subject to Environmental Protection Agency (EPA) approval on a case-by-
case basis, to determine whether these alternative limits satisfy the 
reasonably available control technology (RACT) requirements of the 
Clean Air Act (CAA). EPA proposed to approve this rule as a revision to 
the State Implementation Plan (SIP) on April 30, 2014, and received 
adverse comments. EPA subsequently issued a supplemental proposal on 
October 9, 2014, to address the issue of whether the SIP revision 
satisfies certain anti-backsliding requirements of the CAA. EPA 
received an adverse comment on this supplemental proposal on October 
23, 2014. After duly considering both this comment and the adverse 
comments received in response to the April 30, 2014, proposal, EPA is 
approving this rule because the process established will ensure that 
modified sources meet RACT and the revision meets the anti-backsliding 
requirements of the CAA. This final action addresses all of these 
adverse comments.

DATES: This final rule is effective on December 9, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2014-0206. All documents in the docket are listed on 
the www.regulations.gov Web site. 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 through 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 Steven Rosenthal, at 
(312) 886-6052 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental 
Engineer, Air Programs Branch (AR-18J), Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, 
(312) 866-6052, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background for this final approval?
II. What are EPA's response to comments?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this final approval?

    A detailed background for this approval is contained in the April 
30, 2014, direct final rule (79 FR 24337), which can also be found in 
the docket for this action.
    Under Wisconsin's current SIP-approved NOX control 
program, NR 428, existing simple cycle combustion turbines larger than 
84 megawatts (MW) that undergo a major modification after February 2001 
must meet the emission limitations set forth in s. NR 428.04(2)(g)1.a. 
and 2.a. This provision sets NOX emission limits of 12 or 25 
parts per million dry volume (ppmdv) at 15% oxygen (O2), on 
a 30-day rolling basis, when firing natural gas or distillate oil, 
respectively.
    The WDNR originally set the NOX emission limitations for 
combustion turbines, in NR 428.04(2)(g)1.a. and 2.a., based on the 
mistaken assumption that dry low NOX (DLN) combustion 
technology was feasible and available for both new and modified 
combustion turbines and that such technology was capable of meeting the 
established emission limitations. As previously stated, the emission 
limitations in NR 428.04(2)(g)1.a. and 2.a. apply to simple cycle 
combustion turbines that are larger than 84 MW (of which there are only 
four in the Milwaukee-Racine maintenance area) and undergo a major 
modification. These four combustion turbines are the model 11N turbines 
that were manufactured by ASEA Brown-Boveri (ABB) and are operated by 
We Energies at its Paris generating facility. These four combustion 
turbines were designed and manufactured to use water injection instead 
of DLN technology to control NOX emissions. Use of water 
injection limits NOX emissions to the alternate levels 
provided by Wisconsin Act 91 (25 ppmdv, for natural gas and 65 ppmdv 
for oil), but cannot achieve the emission limits required by NR 
428.04(2)(g), Wis. Admin. Code (12 and 25 ppmdv). These combustion 
turbines are all located in an area that is designated attainment for 
both the 1997 and 2008 ozone standards, although there is a monitor in 
the area with a design value that exceeds the 2008 ozone standard for 
the most recent three-year period for which certified data are 
available (2011-2013).
    For reasons described in the April 30, 2014, direct final rule (79 
FR 24337), WDNR has determined that the previously-approved SIP 
NOX emission limits for simple cycle combustion turbines 
that undergo a major modification in the Milwaukee-Racine area are not 
feasible for the four existing combustion turbines to which these 
limits would apply. EPA agrees with this determination. The Wisconsin 
legislature adopted s. 285.27(3m), which became effective on December 
15, 2013, to establish feasible RACT limits in the event of a major 
modification. EPA finds that these limits constitute RACT and issued 
both a direct final rule and a proposed rule to approve the rule into 
the SIP.

[[Page 72977]]

    In response to EPA's rulemaking, the Sierra Club and Midwest 
Environmental Defense Center provided comments objecting to the 
proposed revision. One of their comments stated that because two of We 
Energies' units had undergone modifications in 2002, they were subject 
to the lower limits of s. NR 428.04(2)(g)1.a. and 2.a. and, as a 
result, the SIP revision was relaxing the limits for these units and 
that ``EPA has done no analysis of whether this increase would result 
in problems maintaining compliance with ozone standards or 1-hour 
NO2 standards.''
    In response to this comment, EPA withdrew the direct final rule and 
published a supplemental proposal on October 9, 2014, explaining its 
basis for concluding that the SIP revision satisfies the anti-
backsliding requirements of section 110(l) of the CAA. The Midwest 
Environmental Defense Center submitted an adverse comment in response 
to this supplemental proposal.

II. What are EPA's responses to comments?

    A. On May 30, 2014, David Bender provided the following comment on 
behalf of the Sierra Club and Midwest Environmental Defense Center.
    Comment--The proposed SIP revision is an unlawful backslide that 
increases allowable emissions. Contrary to EPA's suggestion that Wis. 
Stat. section 285.27(3m) ``will not increase allowable NOX 
emission rates above current levels for the affected combustion 
turbines,'' that the provisions of section 285.27(3m) ``are 
significantly more stringent than the ROP emission limitations'' and 
``do not relax current allowable emission requirements,'' the statute 
is clearly a backslide from the limits that currently apply under the 
approved Wisconsin SIP.
    The Paris Generating Station emission units P01 and P04 were 
modified in June 2002. Therefore, from June 2002, to the present, those 
units were subject to the 12 ppmdv and 25 ppmdv limits in NR 
428.04(2)(g)1.a. and 2.a. when burning natural gas and oil, 
respectively. WDNR's submission incorrectly suggests that currently-
applicable NOX limits are higher than the proposed 25 ppm 
limit, when in fact the currently applicable NOX limits are 
significantly lower than 25 ppm. The limits that EPA proposes to adopt 
would increase the allowable emissions from units P01 and P04 by more 
than 100 percent. This is an unlawful backslide. Moreover, EPA has done 
no analysis of whether this increase would result in problems 
maintaining compliance with ozone standards or 1-hour NO2 
standards.
    EPA response--EPA notes the point raised by the commenters that, 
although the rule is not expected to result in any units operating at 
higher emissions rates than in the past, the rule would increase the 
emissions limits applicable to these sources under the SIP.\1\ Section 
110(l) of the CAA provides in part that, ``The Administrator shall not 
approve a revision of a [SIP] if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in section 7501 of this title), or any other 
applicable requirement of [the Act].''
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    \1\ As noted above, EPA believes that the emissions rates in the 
SIP are technically infeasible for these sources to meet.
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    In order to avoid any potential for interference with attainment or 
maintenance of the NAAQS for ozone and nitrogen dioxide, Wisconsin has 
identified contemporaneous, offsetting emission reductions of 
NOX from a different emission source to compensate for the 
change in the SIP limits for NOX proposed in the rule at 
issue.\2\ We explained in the supplemental proposal for this action (79 
FR 61042) how Wisconsin calculated the appropriate amounts of offsets, 
and additional information on the source of the offsets.
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    \2\ As the offset is for NOX emissions, the analysis 
is equally applicable to the NAAQS for ozone and nitrogen dioxide.
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    Wisconsin submitted to EPA 54.6 tons per year of excess 
NOX emission credits generated by the South Oak Creek (SOC) 
Unit 5 generating facility to be used to address potential backsliding 
under this SIP revision. Wisconsin also notes that a total of 61,970 
tons of NOX was emitted in the Milwaukee-Racine ozone area 
from all sources in 2011. The emission reductions of 54.6 tons per year 
being addressed here for anti-backsliding represents less than 0.07% of 
that total. Taking these offsets into account, EPA has concluded that 
approval of this SIP revision will not interfere with attainment or 
maintenance of the ozone or NO2 NAAQS, or any other 
applicable CAA requirement.
    B. On October 23, 2014, Karen J.T. Jansen, on behalf of the Midwest 
Environmental Defense Center, submitted the following comment in 
response to EPA's supplemental proposed rule.
    Comment--The proposed rule constitutes impermissible backsliding 
under CAA Section 110(l) and the EPA should not approve the proposed 
rule.
    The Paris Generating Station emission units P01 and P04 underwent a 
major modification in June 2002, which changed those units' 
NOX emission limits to 12 ppmdv when burning gas and 25 
ppmdv when burning oil. The proposed rule would raise these limits to 
25/65 ppmdv. This is a huge increase. According to the WDNR, the amount 
of NOX at issue is only .07% of the ozone area's total; 
however, each increase in NOX emission limits contributes to 
SIP attainment or non-attainment. Increasing these NOX 
limits by over 100% contributes, however incrementally, to unlawful 
backsliding.
    While the WDNR has identified the SOC Unit 5 as an offsetting 
option, it assumes that the Paris Generating Station was meeting the 25 
ppmdv limits, while it actually regularly exceeded 25 ppmdv. The 
station is currently shut down due to a compliance order from the WDNR, 
so its actual emissions are unknown. Based on its past history, it is 
likely that the Paris Generating Station will exceed the calculated 25 
ppmdv. Because of the unlawful backsliding, the EPA must reject the 
proposed rule.
    EPA response--As discussed above, EPA agrees that the rule would 
increase the emissions limits applicable to these sources under the 
SIP. In order to avoid any potential for interference with attainment 
or maintenance of the NAAQS for ozone and nitrogen oxide, Wisconsin has 
identified contemporaneous, offsetting emission reductions of 
NOX from a different emission source to compensate for the 
change in the SIP limits for NOX proposed in the rule at 
issue.
    Wisconsin has identified enforceable emission reductions to be used 
in offsetting the 54.6 tons per year of excess emissions in order to 
offset any backsliding. These emission reductions are generated by 
enforceable emission limitations currently in place for the SOC Unit 5 
electric generating facility, which operates in the Milwaukee-Racine 
former ozone nonattainment area.
    There is no guarantee that any source will always comply with its 
SIP limit. However, if the Paris units exceed their SIP limits, they 
become subject to an enforcement action. Furthermore, Wisconsin has 
documented that the Paris combustion turbines have been in compliance 
with the 25 ppmdv limit since at least May 2009.
    C. On May 30, 2014, David Bender also provided the following 
comment on behalf of the Sierra Club and Midwest Environmental Defense 
Center.
    Comment--EPA relies on a best available control technology (BACT) 
determination by WDNR in 2008 for the Concord Generating Station to 
find that

[[Page 72978]]

selective catalytic reduction (SCR) technology is too costly to be the 
basis for a RACT limit for the Paris plant. The only basis for finding 
25/65 ppm is an appropriate RACT limit is the Concord BACT 
determination. But, because the Concord BACT determination was wrong, 
there is no basis to find that the 25/65 ppm limit constitutes RACT. 
The commenter goes on to criticize Wisconsin's BACT determination both 
for incorrectly determining the cost-effectiveness of an SCR to be 
$8,236 per ton of NOX removed and also for its criteria in 
evaluating BACT.
    EPA response--The purpose of our referring to the Concord BACT 
determination process was to explain how the State identified the issue 
that the emission limits in the approved SIP, which were based on DLN 
technology, were adopted in error. Based on the information submitted 
by the State, we agree that DLN is not feasible at this time for the 
four combustion turbines to which the limits that were promulgated in 
error might apply. This action is not reviewing or approving the BACT 
process for the Concord facility.
    Once the State identified the infeasibility of the standards in the 
existing SIP, a determination of RACT was made. For purposes of meeting 
the RACT requirement of the CAA, the BACT determination is not 
dispositive as the two standards are different. RACT is ``reasonably 
available control technology'' and BACT is ``best available control 
technology.'' For purposes of determining whether the revised limits 
are RACT, the State looked at emission limits that apply to similar 
turbines at other facilities. None of those facilities were subject to 
limits tighter than those the State of Wisconsin has adopted and the 
commenter does not identify any sources subject to tighter RACT limits. 
Moreover, we note that before a turbine would be subject to the newly 
adopted, less stringent limits, the source would need to demonstrate 
that it was not technologically or economically feasible to meet the 
tighter limits and EPA would need to approve such demonstration.

III. What action is EPA taking?

    EPA is approving Section 1.285.27(3m), into Wisconsin's 
NOX SIP.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. However, 
APA section 553(d) allows an effective date less than 30 days after 
publication for a rule that ``that grants or recognizes an exemption or 
relieves a restriction.'' 5 U.S.C. 553(d)(1). Since today's action 
relieves a restriction (i.e., NOX emission limits of 12 or 
25 ppmdv at 15% O2, on a 30-day rolling basis) that 
prohibited these turbines from operating, EPA is making this action 
effective immediately upon publication.

IV. 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 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    This rule is not approved to apply on any Indian reservation land 
or in any other area where EPA or an Indian tribe has demonstrated that 
a tribe has jurisdiction. In those areas of Indian country, the rule 
does not have tribal implications as specified by Executive Order 
13175, nor will it impose substantial direct costs on tribal 
governments or preempt tribal law.
    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 action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 9, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: November 24, 2014.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.


0
2. Section 52.2570 is amended by adding paragraph (c)(133) to read as 
follows:

[[Page 72979]]

Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (133) On February 24, 2014, the Wisconsin Department of Natural 
Resources submitted revisions to its nitrogen oxide (NOX) 
combustion turbine rule for the Milwaukee-Racine former nonattainment 
area for the 1997 ozone standard. This revision is contained in ``2013 
Wisconsin Act 91--Senate Bill 371'' which allows alternative 
NOX emission requirements for simple cycle combustion 
turbines, that undergo a modification on or after February 1, 2001, if 
dry low NOX combustion is not technically or economically 
feasible. This revision is approvable because it provides for 
alternative NOX requirements subject to EPA approval on a 
case-by-case basis and therefore satisfies the reasonably available 
control technology (RACT) requirements of the Clean Air Act (Act).
    (i) Incorporation by reference. Wisconsin statute, Section 
285.27(3m), Exemption from Standards for Certain Combustion Turbines, 
as revised by 2013 Wisconsin Act 91 enacted December 13, 2013. (A copy 
of 2013 Wisconsin Act 91 is attached to Section 285.27(3m) to verify 
the enactment date.)

[FR Doc. 2014-28727 Filed 12-8-14; 8:45 am]
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