[Federal Register: April 10, 2003 (Volume 68, Number 69)]
[Rules and Regulations]
[Page 17551-17553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap03-7]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI-113-7343A; FRL-7466-6]
Approval and Promulgation of State Implementation Plans;
Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving a revision to Wisconsin's State
Implementation Plan (SIP) for the attainment of the one-hour ozone
standard for the Milwaukee-Racine area. This SIP revision, submitted to
EPA on December 16, 2002, provides new compliance options for sources
subject to the state's rules limiting emissions of nitrogen oxides
(NOX) from large electricity generating units in southeast
Wisconsin. Under the revised SIP, sources would have the option of
complying with emissions limits on a per unit basis or complying as
part of an emissions averaging plan that also includes an emissions
cap. In addition, the revision creates a new categorical emissions
limit for new integrated gasification combined cycled units.
DATES: This direct final rule is effective on June 9, 2003 without
further notice unless EPA receives adverse written comments by May 12,
2003. If we receive adverse comment, EPA will publish a timely
withdrawal of this direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: You should mail written comments to: Carlton T. Nash, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), USEPA,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
A copy of the state's request is available for inspection at the
above address.
FOR FURTHER INFORMATION CONTACT: Alexis Cain, Environmental Scientist,
Regulation Development Section, Air Programs Branch (AR-18J), USEPA,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)
886-7018.
SUPPLEMENTARY INFORMATION:
I. What Action Is EPA Taking Today?
II. What Is EPA's Evaluation of This Program?
III. Administrative Requirements
I. What Action Is EPA Taking Today?
EPA is approving, as part of the Wisconsin ozone SIP, rules that
would allow sources to use emissions averaging and an emissions cap as
a option for complying with ozone season limits on emissions
(NOX). These limits apply to large electricity generating
units in Southeast Wisconsin. EPA approved the rules setting these
NOX emissions limits into Wisconsin's SIP on November 13,
2001 (66 FR 56931). The limits are expressed in mass of allowable
emissions per unit of heat input (pounds per million Btu).
Emissions averaging will allow units subject to the NOX
emissions limits of NR 428 of the Wisconsin Administrative Code to
create emissions averaging plans in which the compliance of multiple
sources would be assessed collectively. Participating sources would
need to submit such plans to the Wisconsin Department of Natural
Resources (WDNR) at least 90 days prior to the start of the ozone
season, and would need to identify the participating units, their
owners or operators, applicable emissions limitations, projected heat
input and emissions rate, and projected mass emissions for the ozone
season. The plan would establish an aggregate ozone season emissions
rate limit for participating units through a formula that sums
allowable emissions for each unit (based on projected heat input and
each source's individual emissions rate), and divides it by the total
projected heat input. To provide an environmental benefit from
averaging, the formula subtracts 0.01 pounds/mmbtu from each unit's
allowable emissions.
Plan Emission Rate = {Sum [Projected Unit Heat Input x (Unit
Emission Rate Limit--0.01){time} /(Sum of Projected Unit Heat
Inputs)
As a result, total emissions under an averaging plan would be lower
than they would be if each unit demonstrated compliance on an
individual basis. However, individual units would be allowed to exceed
emissions rates specified in the NOX reduction rules, while
other units would emit less than
[[Page 17552]]
allowed under the rules. Thus, averaging allows companies to minimize
the cost of emissions reductions by allocating reductions at the units
that can achieve them most inexpensively.
In addition, units participating in an averaging plan are subject
to a mass emission limitation, beginning with the 2008 ozone season.
This feature of the program ``caps'' the aggregate ozone season
NOX emissions of participating sources at a level that could
not be exceeded regardless of heat input. This level is determined by
the participating units' share of actual heat input during the 1995,
1996 and 1997 ozone seasons, multiplied by 15,912 tons, an amount
consistent with the state's one-hour ozone attainment demonstration.
Within 60 days of the end of each ozone season, owners or operators
of the participating units must submit compliance reports demonstrating
compliance with the plan's emission rate and mass emission limit.
II. What Is EPA's Evaluation of This Program?
EPA has determined that this SIP revision will not interfere with
reasonable further progress or with attainment or maintenance of the
National Ambient Air Quality Standards or any other requirement of the
Clean Air Act. Emissions averaging programs are considered a type of
economic incentive program. EPA's guidance on such programs is
``Improving Air Quality with Economic Incentive Programs,'' EPA-452/R-
01-001, January 2001 (the EIP guidance).
Wisconsin's NOX averaging program conforms with the EIP
guidance, with one notable exception. The EIP guidance indicates that
averaging should take place only among units that are under common
ownership or control. This provision of the guidance is motivated by
the concern that compliance and enforcement difficulties might result
from averaging among sources under different ownership or control.
Compliance in averaging programs depends not only on the emissions
rates of the various sources, but also on the activity level (heat
input) of higher-emitting sources relative to lower-emitting sources.
Since activity levels are subject to constant change and are difficult
to project, it could therefore be difficult for an averaging plan
involving units under different ownership or control to ensure that
compliance is maintained. It could be particularly difficult to
maintain compliance if owners of units projected to have lower
emissions rates projected higher activity levels than could actually be
maintained.
Wisconsin's NOX averaging program allows averaging among
sources that are not under common ownership or control. Nonetheless,
EPA is approving Wisconsin's program, for several reasons. Most
important, beginning in 2008, Wisconsin's program includes an
enforceable emissions cap in addition to emissions averaging. The cap
is set at a level consistent with the one-hour ozone attainment plan
for the Milwaukee-Racine area, and ensures that emissions cannot
increase beyond levels consistent with attainment, regardless of
changes in emissions rates.
In addition, EPA finds that the operation of an averaging program
with averaging across ownership will be of minimal risk in the
individual case of Wisconsin's program. This program involves a limited
number of existing sources, and new sources cannot use emissions
averaging. Therefore, the State will receive only a small number of
averaging plans, and it will be well able to review such plans ahead of
time to ensure that projected activity levels are reasonable. Moreover,
the sources that are potential participants in Wisconsin's averaging
program all operate at levels close to capacity, and therefore have
limited ability to project significant increases in activity levels.
Therefore, EPA anticipates no problems resulting of averaging across
sources under different ownership; nonetheless, EPA will evaluate as
the program operates whether averaging across units under different
ownership creates compliance problems or interferes with the
achievement of expected reductions.
Other provisions of Wisconsin's program include:
[sbull] Excess emission reductions used in an averaging program
must be reductions beyond those needed to meet all other state and
federal requirements;
[sbull] Emissions averaging will create an environmental benefit,
since in calculating the aggregate allowable emission rate, the
allowable emission rate of each source is reduced by 0.01 pounds per
million btu;
[sbull] If either the aggregate allowable emission rate or the mass
ozone season cap is violated, each unit participating in the averaging
plan is considered out of compliance for each day of non-compliance,
and is potentially subject to penalties for each day of non-compliance;
[sbull] NOX reductions used in an emissions averaging
plan cannot be used for compliance with emissions limits established
under the new source review or prevention of significant deterioration
program, or with the NOX reduction requirements of the acid
rain program;
[sbull] If the mass ozone season cap for an averaging plan is
violated, WDNR can require additional emissions reductions from
participating units;
[sbull] Emissions must be measured using continuous monitoring
equipment;
[sbull] WDNR will have the opportunity to review emissions
averaging plans to determine their completeness prior to the beginning
of the ozone season. Averaging plans must be submitted to WDNR 90 days
prior to the beginning of the ozone season, and WDNR has 30 days to
determine whether additional information is needed;
[sbull] The public will be kept informed of potential changes in
emissions caused by emissions averaging; operators of units involved in
an emissions averaging plan are required to provide public notice at
least 60 days prior to the start of the ozone season, and to provide
copies of the plan to the public upon request.
In addition to the NOX averaging and emission cap
provisions, EPA is approving a new categorical emission limit for new
integrated gasification combined cycle units. WDNR created this limit
because these sources will not be able to comply with the limit for
natural gas-fired units that would otherwise apply. While this new
limit is higher than the natural gas-fired limit, these types of
sources will be taking the place of higher emitting coal-fired units
and will, therefore, not affect emissions projections made earlier by
the WDNR, which included growth of coal-fired units. The approval of
this new limit will have no impact on the Wisconsin one-hour ozone
attainment demonstration SIP.
III. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state regulations as meeting federal requirements and
imposes no additional requirements beyond those imposed by state
regulations. Accordingly, the Administrator certifies that this rule
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Because this rule approves pre-existing requirements under state
law and does not impose
[[Page 17553]]
any additional enforceable duty beyond that required by state law, it
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).
This rule also does not have tribal implications, because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the federal government and Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Therefore, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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. Section 804 exempts from section 801 the following types
of rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding this action under section 801 because
this is a rule of particular applicability.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 9, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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, Nitrogen oxides, Reporting and recordkeeping requirements.
Dated: March 6, 2003.
Jerri-Anne Garl,
Acting Regional Administrator, Region 5.
0
For the reasons stated in the preamble, part 52, chapter I, title 40 of
the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart YY--Wisconsin
0
2. Section 52.2570 is amended by adding paragraph (c)(108), to read as
follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(108) On December 16, 2002, Lloyd L. Eagan, Director, Wisconsin
Department of Natural Resources, submitted revised rules to allow use
of NOX emissions averaging for sources subject to
NOX emission limits in the Milwaukee-Racine area. The
revised rules also establish a NOX emissions cap for sources
that participate in emissions averaging, consistent with the emissions
modeled in Wisconsin's approved one-hour ozone attainment demonstration
for the Milwaukee-Racine area. The rule revision also creates a new
categorical emissions limit for new integrated gasification combined
cycle units.
(i) Incorporation by reference.
(A) NR 428.02(6m) as published in the (Wisconsin) Register,
November 2002, No. 563 and effective December 1, 2002.
(B) NR 428.04(2)(g)(3) as published in the (Wisconsin) Register,
November 2002, No. 563 and effective December 1, 2002.
(C) NR 428.06 as published in the (Wisconsin) Register, November
2002, No. 563 and effective December 1, 2002.
[FR Doc. 03-8536 Filed 4-9-03; 8:45 am]
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