[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]



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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

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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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