[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)]
[Rules and Regulations]
[Pages 45348-45351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2017-0280; FRL-9982-60--Region 5]


Air Plan Approval; Wisconsin; 2017 Revisions to NR 400 and 406

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving certain 
changes to the Wisconsin State Implementation Plan (SIP). This action 
relates to changes in Wisconsin's construction permit rules as well as 
the change in the definition for ``emergency electric generators'' in 
NR 400. This request for the revision of the SIP was submitted by the 
Wisconsin Department of Natural Resources (WDNR) on May 16, 2017.

DATES: This final rule is effective on October 9, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2017-0280. All documents in the docket are listed on 
the www.regulations.gov website. 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 
through www.regulations.gov or 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 Rachel Rineheart, Environmental Engineer, at (312) 
886-7017 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Rachel Rineheart, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-7017, [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: is used, we mean EPA. This 
supplementary information section is arranged as follows:

I. Review of State Submittal
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Review of State Submittal

    This final rulemaking addresses the May 16, 2017 WDNR submittal for 
a SIP revision, revising the rules in the Wisconsin SIP to align them 
with Federal requirements. WDNR's submittal includes changes to the 
term ``electric generator,'' replacing it with ``restricted internal 
combustion engine'' as well as other minor language and administrative 
changes. Specifically, NR 400.02(136m) replaces the existing definition 
of emergency ``electric generator'' with a definition of ``restricted 
use internal combustion engine,'' and NR 406.04(1)(w) amends the 
exemption language for ``emergency electric generators,'' replacing it 
with an exemption for ``restricted use reciprocating internal 
combustion engines.'' NR 406.08(1) and NR 406.10 involve minor changes 
to language, and NR 406.11(1) amends procedures for revoking 
construction permits. These changes serve the purpose of aligning 
Wisconsin's definitions with the Federal definitions.
    WDNR is also requesting the removal of NR 406.16(2)(d) and NR 
406.17(3)(e) from the SIP. These provisions address the eligibility of 
coverage under general and registration construction permits based on 
whether the project constituted a Type 2 action under the previous 
chapter NR 150. However, the current chapter NR 150 was amended and no 
longer defines or sets requirements for Type 2 actions. Removing these 
provisions from Wisconsin's SIP ensures consistency with the Wisconsin 
Environmental Protection Act (WEPA), and does not affect consistency 
with the Clean Air Act (CAA). It is also consistent with Section 110(l) 
of the CAA. Sources covered under registration and general permits are 
still subject to all emission caps and applicable requirements 
contained in those permits.

II. What is our response to comments received on the proposed 
rulemaking?

    EPA published a direct final rule on November 7, 2017 (82 FR 
51575), approving Wisconsin's requested revisions to the SIP, along 
with a proposed rule (82 FR 51594) that provided a 30-day public 
comment period. EPA received two comment letters during the public 
comment process. There were comments on the proposed approval from 
Sierra Club and the Center for Biological Diversity combined and one 
comment from an anonymous commenter. The letter from the anonymous 
commenter was dated December 2, 2017 and the letter from Sierra Club 
and the Center for Biological Diversity was dated December 7, 2017. 
Consequently, the direct final rule on this approval was withdrawn on 
December 21, 2017 (82 FR 60545). A summary of the comments received and 
EPA's response follows.

A. Section 110(l) Determination

    Comment 1: The revisions to the prior exemption for emergency 
generators are a relaxation of the SIP and EPA cannot approve the SIP 
relaxation without an analysis that the relaxation will not interfere 
with attainment or maintenance of the National Ambient Air Quality 
Standards (NAAQS) or any other CAA requirement pursuant to Section 
110(l) of the CAA.
    EPA Response: Section 110(l) states ``each revision to an 
implementation plan submitted by a State under this chapter shall be 
adopted by such State after reasonable notice and public hearing. The 
Administrator shall not approve a revision of a plan if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress (as defined in section 171 of this 
title), or any other applicable requirement of this Act.'' Wisconsin 
has adequately demonstrated that the

[[Page 45349]]

change in exemption will not interfere with attainment or maintenance 
of the NAAQS. EPA does not interpret section 110(l) to require a full 
attainment or maintenance demonstration before any changes to a SIP may 
be approved. Generally, a SIP revision may be approved under section 
110(l) if EPA finds it will at least preserve status quo air quality. 
See Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 
2006); GHASP v. EPA, No. 06-61030 (5th Cir. Aug. 13, 2008); see also, 
e.g., 70 FR 53, 57 (Jan. 3, 2005), 70 FR 28429, 28430 (May 18, 2005) 
(proposed and final rules, upheld in Kentucky Resources, which discuss 
EPA's interpretation of section 110(l).\1\
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    \1\ Discussed in Utah Approval, Disapproval, and Promulgation of 
Air Quality Implementation Plans; Utah; Revisions to New Source 
Review Rules, 76 FR 41712 at 41713 (Aug 15, 2011).
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    As mentioned in Subsection A, above, Wisconsin has included two 
categories of engines within its definition of Restricted Use 
Reciprocating Internal Combustion Engines (RICE):
    (a) One that is operated no more than 200 hours per year and that 
meets the definition of emergency stationary RICE or black start engine 
in 40 CFR 63.6675.
    (b) One that is operated in accordance with the definition of 
limited use RICE in 40 CFR 63.6675.
    In order to evaluate whether the air quality will be maintained 
despite the change in definition, we have addressed the two categories 
of engines separately. The first category of engines within the 
definition of emergency stationary RICE or black start engines, as 
defined in 40 CFR 63.6675, operates no more than 200 hours per year (NR 
400.02(136m)(a)). NR 406.04(1)(w) exempts restricted use reciprocating 
internal combustion engines fueled by gaseous fuels, gasoline or a 
clean fuel and which have a combined electrical output of less than 
3000 kilowatts. This is consistent with the definition and exemption 
for emergency electric generators prior to the revision, which referred 
to an electric generator whose purpose is to provide electricity to a 
facility if normal electrical service is interrupted and which is 
operated no more than 200 hours per year. The prior exemption excluded 
``emergency electric generators powered by internal combustion engines 
which are fueled by gaseous fuels, gasoline or distillate fuel oil with 
an electrical output of less than 3000 kilowatts.'' Since the size as 
well as the number of operating hours per year of engines used for 
emergency purposes remains the same before and after the revision, 
there will be no additional impact to air quality as a result of this 
revision.
    The second category of engine within Wisconsin's definition of 
restricted use RICE are limited use engines as defined in 40 CFR 
63.6675 that operate less than 100 hours per year (NR 400.02(136m)(b)). 
We reviewed information on how the State permitted limited use RICE 
prior to the proposed exemption. Limited use RICE, as opposed to 
restricted use RICE, was not a defined category and these engines were 
permitted as stationary RICE with permit restrictions. However, this 
provision in the Wisconsin code exempting limited use RICE from 
obtaining a permit will not result in an increase in emissions beyond 
what would result from construction or modification of these types of 
engines through an individual minor new source review (NSR) 
construction permit. Wisconsin has shown that this permit exemption is 
consistent with conditions that would have been part of a construction 
permit under the prior version of the state regulations.
    For example, prior to the exemption, limited use RICE were included 
in permits with a permit limitation or an operational restriction. The 
permit may or may not have included a restriction in the number of 
hours. Under the proposed exemption, however, sources will need to 
operate for less than 100 hours per year in order to be eligible for 
this exemption, in accordance with 40 CFR 63.6675. Therefore, in some 
cases, this provision in the rule may be more protective of air quality 
than an individual permit. An increase in the hours of operation to 
over 100 hours per year will make the source ineligible for this 
exemption, as per the definition of limited use engines. Further, an 
increase to 100 hours per year or greater will make the source subject 
to the requirements under the Federal National Emission Standards for 
Hazardous Air Pollutants (NESHAP). An exemption from obtaining a permit 
does not relieve the source from having to comply with the NESHAP. 
Therefore, the NESHAP acts as a backstop to ensure emissions from these 
engines are controlled. As mentioned above, EPA may approve a SIP 
revision under section 110(l) if EPA finds it will at least preserve 
status quo air quality. Kentucky Resources, supra.

B. Aligning With Federal Requirements

    Comment 1: ``It is unclear what Federal requirements or Federal 
program EPA is referencing throughout this notice''.
    EPA response: In this action, EPA is referring to the Federal 
definition of RICE under 40 CFR 63.6675. The Federal regulations do not 
specifically define emergency generators. 40 CFR 63.6675 defines 
internal combustion engines that are used for emergency purposes. 
WDNR's revised definition conforms to the Federal definition of 
internal combustion engines used for emergency purposes.
    EPA does not find the need to re-propose this action, since 
commenters had adequate notice of these Federal requirements. The 
Federal citation is clearly mentioned in Wisconsin's revised definition 
of RICE under NR 400.02(136m).
    Comment 2: The Federal NESHAPs are not the same program as the NSR 
program and are not designed to meet the same goals. Thus EPA's 
statement that these changes ``serve the purpose of aligning the state 
and Federal regulations'' is not grounded in the CAA.
    EPA response: EPA understands that NESHAPs and the NSR program are 
different programs, but that does not eliminate the value in aligning 
state and Federal regulations. Consistency among state and Federal 
regulatory requirements, whether from the same or different programs, 
is valuable to achieve goals such as simplifying applicability and 
regulatory requirements and promoting compliance. Such alignment need 
not be mandated by the CAA to add such value, and EPA and states need 
only assure that an alignment of state and Federal requirements across 
programs is not inconsistent with the CAA requirements for either 
program. The revisions approved in this action pass this test.
    Further, this action is only aligning Wisconsin's definitions with 
the Federal definitions, thereby aligning permitting exemptions with 
certain NESHAP exemptions. The revision does not attempt to align the 
regulatory requirements or the pollutants addressed by these programs 
in a manner that is inconsistent with the CAA requirements for either 
program.

C. Exclusions From Modifications, NR 406.04(4)(e)

    The Wisconsin Code NR 406.04(4) has provisions that exclude certain 
types of changes from constituting a modification. The purpose of these 
exclusions is to minimize the administrative and economic burdens on 
both the agency and low emitting sources without sacrificing 
environmental protection. NR 406.04(4)(e) excludes from the definition 
of modification sources that increase their hours of operation if: (1)

[[Page 45350]]

The increase is not prohibited by any permit, plan approval or special 
order applicable to the source; and (2) the increase will not cause or 
exacerbate the violation of an ambient air quality standard or ambient 
air increment or violate an emission limit.
    Comment 1: The exemption in NR 406.04(1)(w), when considered in 
conjunction with the existing exemptions under NR 406.04(4)(e), could 
allow the construction of a stationary reciprocating internal 
combustion engine without a permit that could ultimately be allowed to 
operate 8760 hours per year with no construction permit being issued 
prior to review.
    EPA response: 40 CFR 51.160 requires that a SIP set forth legally 
enforceable procedures that enable the permitting authority to 
determine whether the source is in violation of applicable portions of 
the control strategy or would result in an interference with the 
attainment or maintenance of a NAAQS. The exemption in NR 406.04(1)(w) 
exempts restricted use RICE that (1) operated no more than 200 hours 
per year and meet the definition of emergency stationary RICE in 40 CFR 
63.6675; or (2) are operated in accordance with the definition of 
limited use RICE in 40 CFR 63.6675, i.e. RICE that is operated no more 
than 100 hours per year. An increase in hours of operation above these 
thresholds, as applicable, will cause the source to no longer qualify 
for the permit exemption and will thereby result in a SIP violation. 
Further, the exemption in NR 406.04(1)(w)2. requires that records be 
kept of total hours the engines operate each year to verify that the 
units continue to meet the criteria for an exemption.

D. Air Quality Analysis

    Comment 1: Wisconsin's exemption could apply to generators used for 
peak shaving. Peaking units typically go through frequent startups and 
shutdowns and thus could have disproportionately high emissions on a 
short-term basis despite the limited operating hours per year. EPA must 
require a worst case evaluation of impacts on the NAAQS--particularly 
the 1-hour SO2 and 1-hour NO2 NAAQS.
    EPA response: WDNR's definition of restricted use RICE mirrors the 
Federal definition of emergency stationary RICE in 40 CFR 63.6675. This 
definition, while allowing an engine to operate for up to 50 hours per 
year for non-emergency purposes, clearly precludes the source from 
using the engines for ``. . . peak shaving or non-emergency demand 
response, or to generate income for a facility to an electric grid or 
otherwise supply power as part of a financial arrangement with another 
entity.'' Prior to adopting the proposed definition, Wisconsin did not 
have a category called ``limited-use'' engines. An engine could either 
be operated as a ``limited-use'' engine by restricting the number of 
operating hours through a permit, or have permit limits based on its 
usage. Engines that had restrictions on the number of operating hours 
were required to maintain records of the number of hours they operate, 
with no further requirements. Under the revised regulation, operating 
hours equal to or greater than the applicable thresholds under the 
definition will trigger a permit requirement and the requirements of 
Wisconsin's minor source permit program. These permitting requirements 
include an analysis of the impact on ambient air quality. Moreover, an 
increase in the number of hours will trigger requirements under the 
NESHAP. As discussed above in the context of section 110(l), EPA has 
conducted an evaluation sufficient to support the conclusion that the 
approved changes will preserve the status quo air quality.

III. What action is EPA taking?

    EPA is approving the requested revisions to WDNR's SIP. 
Specifically EPA is approving revisions to Wisconsin rules NR 
400.02(136m), NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR 
406.11(1). EPA is also approving the removal of NR 406.16(2)(d) and NR 
406.17(3)(e) from the SIP.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Wisconsin 
Regulations described in the amendments to 40 CFR part 52 set forth 
below. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov and at the EPA Region 5 
Office (please contact the person identified in the ``For Further 
Information Contact'' section of this preamble for more information).

V. 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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).
    In addition, the SIP 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 and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 45351]]

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 November 6, 2018. 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, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Sulfur oxides, Volatile 
organic compounds.

    Dated: August 8, 2018.
Cathy Stepp,
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 revising paragraph (c)(113)(i)(D), and 
by adding paragraph (c)(137) to read as follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (113) * * *
    (i) * * *
    (D) NR 400.02(73m) and (131m), 406.02(1) and (2), 406.04(2m), NR 
406.11(1)(g)(1), 406.11(3), 406.16, 406.17, 406.18, 407.02(3m), 
407.105, 407.107, 407.14 Note, 407.14(4)(c), 407.15(8)(a) and 
410.03(1)(a)(6) and (7) as created and published in the (Wisconsin) 
Register, August 2005, No. 596, effective September 1, 2005. Sections 
NR 406.16(2)(d) and NR 406.17(3)(e) were repealed in 2015 and are 
removed without replacement; see paragraph (c)(137) of this section.
* * * * *
    (137) On May 16, 2017, the Wisconsin Department of Natural 
Resources submitted a request to revise Wisconsin's air permitting 
rules NR 400.02(136m), NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR 
406.11(1). These revisions replace the existing definition of 
``emergency electric generator'' with the Federal definition of 
``restricted internal combustion engine'', amends procedures for 
revoking construction permits and include minor language changes and 
other administrative updates. Wisconsin has also requested to remove 
from the SIP NR 406.16(2)(d) and NR 406.17(3)(e), provisions affecting 
eligibility of coverage under general and registration construction 
permits, previously approved in paragraph (c)(113) of this section. 
This action ensures consistency with Wisconsin Environmental Protection 
Act (WEPA) laws.
    (i) Incorporation by reference.
    (A) Wisconsin Administrative Code, NR 400.02(136m) as published in 
the Wisconsin Administrative Register November 2015 No. 719, effective 
December 1, 2015.
    (B) Wisconsin Administrative Code, NR 406.04(1)(w), NR 406.08(1), 
NR 406.10 and NR 406.11(1) as published in the Wisconsin Administrative 
Register November 2015 No. 719, effective December 1, 2015.

[FR Doc. 2018-19161 Filed 9-6-18; 8:45 am]
 BILLING CODE 6560-50-P