[Federal Register Volume 87, Number 157 (Tuesday, August 16, 2022)]
[Proposed Rules]
[Pages 50280-50282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17517]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2022-0370; FRL-9950-01-R5]


Air Plan Approval; Wisconsin; 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve rules submitted by the Wisconsin Department of Natural 
Resources (WDNR) as a revision to its State Implementation Plan (SIP). 
The submitted rules incorporate the 2015 primary and secondary National 
Ambient Air Quality Standards (NAAQS) for ozone. In addition, WDNR 
included several updates to ensure implementation of the ozone NAAQS, 
in areas currently or formerly designated as nonattainment for any 
ozone standard, in a manner consistent with Clean Air Act (CAA) 
requirements.

DATES: Comments must be received on or before September 15, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2022-0370 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6031, [email protected]. The 
EPA Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays and facility closures due to COVID-
19.

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

I. When and why did the State make this submittal?
II. What are the State rule revisions?
III. What is EPA's analysis of the revisions?
IV. What action is EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. When and why did the State make this submittal?

    Section 109 of the CAA requires EPA to establish national primary 
(protective of human health) and secondary (protective of human 
welfare) air quality standards for pollutants for which air quality 
criteria have been issued under section 108 of the CAA (the criteria 
pollutants \1\). Section 109(d)(1) of the CAA requires EPA to review, 
and if necessary, based on accumulated health and welfare data, to 
revise each NAAQS every five years. If a NAAQS is revised, states whose 
rules include state air quality standards may revise their rules to 
address the revised NAAQS and associated monitoring requirements, and 
submit them to EPA as SIP revision requests. See, e.g., 415 ILCS 5/
10(H).
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    \1\ The criteria pollutants are ozone (O3), nitrogen 
oxides (represented by nitrogen dioxide (NO2)), sulfur 
oxides (represented by sulfur dioxide (SO2)), carbon 
monoxide (CO), particulate matter (represented by total suspended 
particulates (TSP), particulates (PM10), and fine 
particulates (PM2.5)), and lead (Pb).
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    On October 26, 2015 (80 FR 65291), EPA revised the primary and 
secondary ozone NAAQS from 0.075 to 0.070 parts per million (ppm), 
daily maximum 8-hour concentration, codified at 40 CFR 50.19. The ozone 
NAAQS continues to use an 8-hour averaging time, calculated as the 
fourth-highest daily maximum averaged across three consecutive years. 
EPA also revised the monitoring requirements for ozone, which are 
codified at 40 CFR part 50.
    As part of the implementation rule for the 2015 standard, EPA did 
not address any revocation of the 2008 ozone NAAQS. Thus, currently 
there are two ozone NAAQS in effect and being implemented: the 2015 
ozone NAAQS and the 2008 ozone NAAQS. Several elements of this rule 
will apply to areas currently or formerly designated as nonattainment 
for any ozone standard, including these two ozone NAAQS.
    On April 8, 2022, WDNR submitted rules to update chapters NR 404 
and 484 of Wisconsin's ambient air quality rule to include the 2015 
primary and secondary NAAQS for ozone and its incorporation by 
reference rule to add EPA-promulgated monitoring requirements related 
to the NAAQS. WDNR revised sections of chapters NR

[[Page 50281]]

407 (Operation permits), 408 (Construction permits for direct major 
sources in nonattainment areas) and 428 (nitrogen oxides 
(NOX) reasonably available control technologies (RACT)) to 
ensure implementation of the ozone NAAQS in a manner consistent with 
Federal regulations. As there are currently two ozone NAAQS in effect, 
the revisions to NR 407, NR 408, and NR 428 clarify which major source 
emissions thresholds apply in areas subject to more than one ozone 
nonattainment classifications.
    WDNR provided opportunities to comment on the rule during the 
public comment period from March 1, 2021, through April 15, 2021, and 
at a public hearing held on April 8, 2021, in accordance with chapter 
227 of the Wisconsin Statutes and 40 CFR 51.102. No comments were 
received.

II. What are the State rule revisions?

Chapter NR 404--Ambient Air Quality and NR 484--Incorporation by 
Reference Rules

    WDNR updated and amended its ambient air quality rule in chapter NR 
404 by adding both the primary and secondary ozone standards for ozone 
to be consistent with EPA's 2015 NAAQS and codified that revision into 
section NR 404.04(5)(c). Also, WDNR revised its incorporation by 
reference rule in chapter NR 484 to add a reference to the monitoring 
requirements at 40 CFR part 50, appendix U, Interpretation of the 
National Ambient Air Quality Standards for Ozone, and codified that 
revision into NR 484.04, Table 2, row 7(s) relating to the 
incorporation of the 2015 NAAQS for ozone.

Chapter NR 407--Operation Permits and Chapter NR 408--Construction 
Permits for Direct Major Sources in Nonattainment Areas

    NR 407 applies to all stationary sources required to obtain an 
operation permit. A ``major source'' is a stationary source whose 
emissions exceed a specified threshold. Major source thresholds are 
defined in part D of title I of the CAA (42 U.S.C. 7501 to 7515) based 
on an area's ozone nonattainment classifications (100 tons per year 
(tpy) in areas classified as ``moderate,'' 50 tpy in areas classified 
as ``serious,'' 25 tpy in areas classified as ``severe,'' and 10 tpy in 
areas classified as ``extreme'' nonattainment). This definition is 
currently incorporated in Wisconsin's rule at subsection NR 
407.02(4)(c)(1)(a).
    WDNR is updating the definition of major stationary source at NR 
407.20(4)(c) to clarify which major source emissions threshold applies 
in an area classified as nonattainment for more than one NAAQS. WDNR 
revised NR 407.20(4)(c) by adding subsection (1)(b). NR 
407.20(4)(c)(1)(b) explains that the classification with the lowest 
emission threshold under subsection NR 407.02(4)(c)(1)(a) determines 
the major source threshold in an area classified as nonattainment for 
more than one ozone NAAQS, until the area is redesignated to attainment 
for a current standard or a redesignation substitute for a revoked 
standard has been approved by the EPA for the standard with the lowest 
emission threshold.

Chapter NR 408--Construction Permits for Direct Major Sources in 
Nonattainment Areas

    NR 408 applies to all new major sources and all major modifications 
located in areas designated as ozone nonattainment by EPA. A ``major 
modification'' refers to a modification project, including construction 
of new emission units and modification of existing units, at an 
existing source that results in the source's potential to emit 
exceeding the CAA-specified major source threshold. New major sources 
and major modifications are subject to nonattainment New Source Review 
permitting requirements. As such, WDNR updated its definition of 
``nonattainment'' at subsection NR 408.02(24) to identify which major 
source or major modification emissions thresholds apply in an area 
classified nonattainment for more than one NAAQS.
    WDNR is revising subsection NR 408.02(24) by adding subsection (c). 
As subsection NR 408.02(24)(c) explains, the classification with the 
lowest emission threshold under section NR 407.02 (4)(c)(1)(a) 
determines the major source or major modification threshold in an area 
classified as nonattainment for more than one ozone NAAQS, until the 
area is redesignated to attainment for a current standard or a 
redesignation substitute for a revoked standard has been approved by 
the EPA for the standard with the lowest emission threshold.
    WDNR also makes a minor change to update the definition of 
``significant'' at subsection NR 408.02(32)(a) to correct an oversight 
to include NOX as an ozone precursor. WDNR amended 
subsection NR 408.02(32)(a)(6) by adding emissions of NOX in 
reference to determination of a significant net emissions increase or 
the potential of a source to emit that would equal or exceed a 
pollutant rate of 40 tpy of NOX.

Chapter NR 428--Control of Nitrogen Compounds

    In subchapter IV of NR 428, to meet the requirements of sections 
172(c) and 182 (f) of the CAA, section NR 428.20 includes 
NOX RACT standards for NOX emission units in 
areas that are classified moderate nonattainment for ozone. Currently, 
in subsection NR 428.20(a)(1)(a), NOX RACT requirements 
apply to sources with maximum theoretical NOX emissions 
equal to or greater than 100 tpy in Kenosha, Milwaukee, Ozaukee, 
Racine, Sheboygan, Washington, or Waukesha Counties that are or had 
been previously classified as ``moderate'' ozone nonattainment areas. 
WDNR is updating the NOX RACT requirements to expand its 
applicability to any area that is classified as moderate and above for 
ozone nonattainment to be consistent with section 182 of the CAA. WDNR 
revised the applicability of NOX RACT requirements at 
subsection NR 428.20(1)(a) by adding subsection (2). Subsection NR 
428.20(1)(a)(2) includes all the major source emissions thresholds 
associated with current (and former) ozone nonattainment classification 
of the area (i.e., 100 tpy in areas classified as ``moderate,'' 50 tpy 
in areas classified as ``serious,'' 25 tpy in areas classified as 
``severe,'' and 10 tpy in areas classified as ``extreme'' 
nonattainment). Thus, the revision to the NOX RACT 
applicability threshold provisions in NR 428 will include other 
counties that may be classified as moderate in the future or for 
counties whose ozone nonattainment classifications may be changed from 
moderate to a more stringent classification and, as a result, have 
major source thresholds below 100 tpy under the CAA.
    In addition, WDNR updated the NOX RACT requirements to 
clarify which emissions threshold is applicable to the same area due to 
different ozone standards or a change in nonattainment classification. 
WDNR amended section NR 428 by adding subsection 428.20(1)(a)(3)(b), 
which explains that if more than one emission threshold is applicable 
to the same area due to different ozone standards or a change in 
nonattainment classification, the lowest applicable emission threshold 
applies. To ensure implementation of the ozone NAAQS under 
NOX RACT, WDNR amended NR 428.20 by adding subsection NR 
428.20(1)(a)(3)(c), which states, ``The requirements of this subchapter 
remain applicable to each affected unit regardless of any subsequent 
decrease in maximum theoretical emissions of NOX at the

[[Page 50282]]

source to a level below the applicable emission thresholds.''
    Subsection NR 428.21(3), ``Other Regulated Units,'' provides an 
exemption for certain NOX emission units. WDNR amended NR 
428.21(3), to ensure that the existing 75 tpy exemption threshold 
continues to apply in areas with a 100 tpy major source emission 
threshold, by adding subsections NR 428.21(3)(b) and (c). The changes 
clarify that the exemption applies--if the emissions unit is located in 
a facility subject to the applicability thresholds specified under 
section NR 428.20 (1)(a)1, 2(a), or 3(a), and if the emission unit is 
subject to and meeting an emission limitation in Wisconsin's SIP under 
section NR 428.04(2) or NR 428.05(3).
    Last, WDNR updated NR 428 to create a section that describes the 
compliance schedule for a facility that has NOX emission 
units affected by the updated NOX RACT thresholds in NR 
428.20, by adding subsection NR 428.255 to include information on 
compliance schedules. The changes to NR 428 will only have the 
potential to impact sources whose emissions exceed the NOX 
RACT major source applicability.

III. What is EPA's analysis of the revisions?

    CAA Section 110(l) prohibits EPA from approving a SIP revision if 
that revision would interfere with any applicable requirement 
concerning attainment, reasonable further progress, or any other CAA 
requirement. EPA concurs with WDNR's 110(l) analysis that the revision 
to Wisconsin's rules does not interfere with any applicable requirement 
concerning attainment or any other applicable requirement of the CAA. 
The revisions to rules NR 404, NR 407, NR 408, NR 428, and NR 484 have 
no impact on emissions, ensures implementation of the ozone NAAQS in 
areas designated nonattainment and are consistent with the requirements 
of the CAA.

IV. What action is EPA taking?

    EPA is proposing to approve revisions to chapters NR 404, 407, 408, 
428, and 484, as submitted on April 8, 2022, into the Wisconsin SIP. 
The revision to chapters NR 404 and 484 update Wisconsin's ambient air 
quality rule to incorporate the 2015 ozone NAAQS and the incorporation 
by reference rule with the monitoring requirements related to the NAAQS 
make Wisconsin's rules consistent with the Federal regulations. 
Additionally, the clarifications and updates to sections of chapters NR 
407, 408 and 428, ensure implementation of the ozone NAAQS in areas 
designated nonattainment and are consistent with the CAA.

V. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, EPA is proposing to 
incorporate by reference revisions to Wisconsin Administrative Code 
rules NR 404, NR 407, NR 408, NR 428, and NR 484 as published in the 
Wisconsin Register #794 on February 28, 2022, effective March 1, 2022, 
discussed in section II of this preamble. 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).

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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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 proposed 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).

List of Subjects in 40 CFR Part 52

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

    Dated: August 9, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-17517 Filed 8-15-22; 8:45 am]
BILLING CODE 6560-50-P