[Federal Register Volume 87, Number 230 (Thursday, December 1, 2022)]
[Proposed Rules]
[Pages 73706-73708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26017]
[[Page 73706]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2008-0784; FRL-9965-01-R5]
Air Plan Approval; Wisconsin; Definition of Chemical Process
Plants Under State PSD Regulations and Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the State Implementation Plan (SIP) for Wisconsin
and revisions to the title V Operating Permit Program for Wisconsin.
The proposed revisions incorporate changes to the definition of
``chemical process plants'' under Wisconsin's Prevention of Significant
Deterioration (PSD) and title V Operating Permit Programs. The changes
to the state rules described below are approvable because they are
consistent with EPA regulations governing state PSD and title V
programs and will not interfere with any applicable requirement
concerning attainment and reasonable further progress (as defined in
section 171 of the Clean Air Act (CAA)), or any other applicable
requirement of the CAA.
DATES: Comments must be received on or before January 3, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2008-0784 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: Rachel Rineheart, Environmental
Engineer, Air Permit Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-7017, [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.
I. What is being addressed in this document?
EPA is proposing to approve revisions to the Wisconsin SIP received
on September 30, 2008. EPA is also proposing to approve revisions to
the Wisconsin title V Operating Permit Program. These revisions address
changes made to EPA regulations that are reflected in EPA's final rule
entitled ``Prevention of Significant Deterioration, Nonattainment New
Source Review (NA NSR), and Title V: Treatment of Certain Ethanol
Production Facilities Under the `Major Emitting Facility' Definition''
(hereinafter referred to as the ``2007 Ethanol Rule'') as published in
the Federal Register on May 1, 2007 (72 FR 24059). The 2007 Ethanol
Rule amended the PSD definition of ``major stationary source'' in the
Federal PSD regulations (40 CFR 51.166 paragraphs (b)(1)(i)(a),
(b)(1)(iii)(t) and (i)(1)(ii)(t)) to exclude certain ethanol facilities
from the ``chemical process plant'' source category. In doing so, it
established the PSD major source threshold for ethanol production
facilities at 250 tons per year (tpy) rather than 100 tpy. The 2007
Ethanol Rule also removes the requirement to include fugitive emissions
when determining if an ethanol production facility is major for PSD and
title V permitting.
On October 21, 2019, EPA responded to a petition for
reconsideration of the 2007 Ethanol Rule, denying the petition with
respect to the revisions of the PSD regulations reflected in that rule
(as described in more detail below). EPA is now proposing to approve
revisions to Wisconsin's SIP and operating permit program that are
based on a part of the 2007 Ethanol Rule.
II. Background
A. PSD Permitting Thresholds for Chemical Process Plants Prior to the
2007 Ethanol Rule
Under the CAA, there are two potential thresholds for determining
whether a source is a major emitting facility that is potentially
subject to the construction permitting requirements under the PSD
program. One threshold is 100 tpy per pollutant, and the other is 250
tpy per pollutant. Section 169(1) of the CAA lists 28 source categories
that qualify as major emitting facilities if their emissions exceed the
100 tpy threshold. If the source does not fall within one of the 28
source categories listed in section 169, then the 250 tpy threshold is
applicable.
One of the source categories in the list of 28 source categories to
which the 100 tpy threshold applies is chemical process plants. Since
the Standard Industrial Classification code for chemical process plants
includes facilities primarily engaged in manufacturing ethanol fuel,
the EPA and states had previously considered such facilities to be
subject to the 100 tpy threshold.
As a result of this classification, pursuant to the EPA regulations
adopted under section 302(j) of the CAA, which address the treatment of
fugitive emissions in applicability of PSD, chemical process plants
were also required to include fugitive emissions for determining the
potential emissions of such sources. See, e.g., 40 CFR
51.165(a)(1)(iv)(C). Thus, prior to promulgation of the 2007 Ethanol
Rule, the classification of fuel and industrial ethanol facilities as
chemical process plants had the effect of requiring these plants to
include fugitive emissions of criteria pollutants when determining
whether their emissions exceed the applicability thresholds for the PSD
and NA NSR permit programs.
B. Title V Permitting Thresholds for Chemical Process Plants Prior to
the 2007 Ethanol Rule
The CAA also established requirements for determining applicability
for the title V operating permit program. All title V major sources
must obtain a title V permit. Section 501(2) of the CAA defines ``major
source'' for the purpose of the title V program as either a ``major
source'' as defined by section 112 of the CAA or a ``major stationary
source'' as defined in section 302 or part D of title I of the CAA.
Under the general definition of ``major stationary source'' in section
302(j) of the CAA, the major source threshold for any air pollutant is
[[Page 73707]]
100 tons per year. Under the NA NSR requirements of Part D of title I
of the CAA, the applicability of the lower thresholds for major sources
is dependent upon the pollutant and the severity of the nonattainment
classification. Major source thresholds for hazardous air pollutants
(HAP) under section 112 of the CAA are 10 tpy for a single HAP and 25
tpy for any combination of HAPs. A source with emissions that exceed
either of these thresholds is required to obtain a title V operating
permit.
Section 502 of the CAA and EPA regulations provide that sources
that belong to one of 28 source categories listed in 40 CFR 70.2 must
include fugitive emissions in determining applicability. The list of 28
source categories may also be included in approved state operating
permit regulations.
C. Ethanol Rule
On May 1, 2007, EPA published the 2007 Ethanol Rule in the Federal
Register (72 FR 24060). This final rule amended the PSD and NA NSR
regulations to exclude ethanol manufacturing facilities that produce
ethanol by natural fermentation processes from the ``chemical process
plant'' category under the regulatory definition of ``major stationary
source.''
This change to the PSD regulations affected the threshold used to
determine PSD applicability for these ethanol production facilities,
clarifying that such facilities were subject to the 250 tpy major
source threshold. The 2007 Ethanol Rule also changed how fugitive
emissions are considered for affected ethanol production facilities.
Because they would no longer be considered as part of the ``chemical
process plants'' category, ethanol facilities would no longer be
required to include fugitive emissions when determining major source
status under PSD, NA NSR, and title V.
D. Petitions for Review and Reconsideration of the 2007 Ethanol Rule
On July 2, 2007, the National Resources Defense Council (NRDC)
petitioned the U.S. Court of Appeals for the D.C. Circuit (D.C.
Circuit) to review the 2007 Ethanol Rule. On that same day, EPA
received a petition for administrative reconsideration and request for
stay of the 2007 Ethanol Rule from NRDC. On March 27, 2008, EPA denied
NRDC's 2007 administrative petition for reconsideration.
On March 2, 2009, EPA received a second petition for
reconsideration and a request for stay from NRDC. In 2009, NRDC also
filed a petition for judicial review challenging EPA's March 27, 2008,
denial of NRDC's 2007 administrative petition in the D.C. Circuit. This
challenge was consolidated with NRDC's challenge to the 2007 Ethanol
Rule. In August of 2009, the D.C. Circuit granted a joint motion to
hold the case in abeyance, and the case has remained in abeyance.
On October 21, 2019, EPA partially granted and partially denied
NRDC's 2009 administrative petition for reconsideration. Specifically,
EPA granted the request for reconsideration with regard to NRDC's claim
that the 2007 Ethanol Rule did not appropriately address the CAA
section 193 antibacksliding requirements for nonattainment areas.
III. What revisions to the Wisconsin rules is EPA proposing to approve?
On September 30, 2008, EPA received a request from the Wisconsin
Department of Natural Resources to revise the Wisconsin SIP. This
submittal included changes to the definition of ``major stationary
source'' under Wisconsin Administrative Code chapters NR 405, NR 407,
and NR 408, which incorporate into the Wisconsin regulations the
changes EPA made to Federal PSD and title V regulations in the 2007
Ethanol Rule. In addition to the changes related to the 2007 Ethanol
Rule, this submittal contained revisions to NR 405 and 408 with respect
to the definition of ``replacement unit'' and how calculations are to
be performed under a Plantwide Applicability Limit (PAL). EPA approved
the changes to replacement unit and PAL calculations in a separate
action on May 6, 2021 (86 FR 24499).
In this action EPA is proposing to approve the PSD and title V
changes in NR 405 and 407 relating to the 2007 Ethanol Rule. EPA is
taking no action at this time with respect to the NA NSR changes in NR
408 related to the 2007 Ethanol Rule.
The regulations that EPA is proposing to approve adopt language
that is the same as or consistent with the language of EPA's 2007
Ethanol Rule. The state regulations that EPA is proposing to approve
exclude production facilities that produce ethanol by natural
fermentation from the ``chemical process plants'' category. These
revisions clarify that an ethanol facility is subject to the PSD major
source threshold of 250 tons per year and that such sources need not
include fugitive emissions when determining major source applicability
under PSD and title V.
EPA has determined that the proposed revisions will not interfere
with any applicable requirement concerning attainment and reasonable
further progress, or any other applicable requirement of the CAA as
required by section 110(l) of the CAA. Our determination is based on an
analysis of Wisconsin's ethanol production trends, existing ethanol
production permit requirements and locations with respect to ambient
air monitoring, Wisconsin's statewide emissions inventory, Wisconsin's
air quality design value trends, and representative photochemical
modeling results for ozone and secondary fine particulate
(PM2.5) formation. Our analysis is included in the docket
for this rulemaking.
Our analysis shows that Wisconsin's existing ethanol production
facilities contribute 3.2% or less of each criteria pollutant when
compared to statewide facility emissions. Wisconsin's total ethanol
production has increased since 2007 but the state's air quality has
steadily improved in general. Photochemical modeling of hypothetical
sources representative of ethanol production facilities shows that
ozone formation as a result of oxides of nitrogen (NOX) and
volatile organic compounds emissions and secondary PM2.5
formation as a result of NOx and sulfur dioxide emissions will not
themselves cause or contribute to a violation of the ozone or
PM2.5 National Ambient Air Quality Standard. In addition,
the applicability of Federal and state requirements to ethanol
production facilities in Wisconsin, such as New Source Performance
Standards at 40 CFR part 60 and National Emission Standards for
Hazardous Air pollutants at 40 CFR parts 61 and 63, will remain
unaffected by this action.
IV. What action is EPA taking?
EPA is proposing to approve revisions to the Wisconsin SIP in 40
CFR 52.2570. EPA is also proposing to approve revisions to the
Wisconsin title V Operating Permit Program in 40 CFR part 70 appendix
A. The revisions that EPA is proposing to approve change the definition
of ``major stationary source.'' EPA is not taking action on similar
changes related to NA NSR in this action. This action would approve
changes to the state regulations that establish that the PSD
applicability threshold for certain ethanol plants is 250 tpy and
remove the requirement to include fugitive emissions when determining
if an ethanol plant is subject to major source requirements under PSD
and the title V Operating Permit Program. EPA has determined
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that these revisions are consistent with EPA's PSD and title V
regulations and that approval of these revisions is consistent with the
requirements of CAA section 110(l) and will not adversely impact air
quality.
V. Incorporation by Reference
In this 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
405.02(22)(a)1. and NR 405.07(4)(a)20., as published in the Wisconsin
Register #631 on July 31, 2008, effective August 1, 2008, discussed in
section IV 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 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 22, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-26017 Filed 11-30-22; 8:45 am]
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