Air Plan Approval; Wisconsin; Nitrogen Oxide Emissions Control Requirements

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve Wisconsin's additions and amendments to chapters NR 400, 428, and 484 of the Wisconsin Administrative Code (Wis. Adm. Code). These changes clarify existing requirements and ensure clear and consistent implementation of Wisconsin's control requirements for emissions of nitrogen oxide (NO_X).

DATES:

Comments must be received on or before August 16, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2024-0184 at https://www.regulations.gov , or via email to a rra.sarah@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), 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, PBI, or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Katie Mullen, Air and Radiation Division (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-3490, mullen.kathleen@epa.gov. The EPA Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

I. What is the background of this SIP submission?

Chapter NR 428, Wis. Adm. Code, regulates the emissions of NO_X from certain stationary sources located in Wisconsin's current ozone nonattainment areas and areas with a history of ozone nonattainment, including Kenosha, Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha counties.

Since the promulgation of the 2001 and 2007 revisions to chapter NR 428, Wis. Adm. Code, Wisconsin has identified several implementation issues associated with certain parts of this chapter. The purpose of Wisconsin's proposed revisions is to ensure clear and consistent implementation of NO_X control requirements in chapter NR 428. Wisconsin is not currently seeking approval of this rule as it pertains to the reasonably available control technology (RACT) requirements under the 2015 ozone national ambient air quality standard (NAAQS). EPA will be addressing RACT at a later date.

II. What is EPA's analysis of the proposed SIP revision?

Wisconsin's April 10, 2024, submittal requested that EPA approve revisions to NO_X control requirements in chapters NR 400, NR 428, and NR 484 of the Wis. Adm. Code. Wisconsin's proposed revisions clarify emission limits for units using more than one type of fuel, incorporate procedures for approving a site-specific emission limit alternative to ensure that limits are achievable in practice, revise and clarify existing compliance and monitoring requirements, clarify an applicability exception, update cross references, and include definitions.

A. Clarification of NO _X Emission Limits During Secondary Fuel Useage

Wisconsin has revised sections NR 428.04(2)(i), 428.05(2)(b), 428.05(2)(f), 428.05(3)(f), 428.22(1), and 428.22(3) of the Wis. Adm. Code to clarify that a unit firing secondary fuel is not subject to emission limits and monitoring requirements when using only the secondary fuel under certain limited circumstances, which include any of the following conditions:

a. The emissions unit heat input capacity or maximum design power output while utilizing the secondary fuel is less than the corresponding applicability thresholds.

b. The emissions unit burns the secondary fuel only during periods of curtailment or supply interruption of other fuel(s) not to exceed 500 hours in a 12 consecutive month period.

c. During periodic testing, maintenance, or operator training of the secondary fuel when the periodic testing, maintenance, or operator training does not exceed 48 hours during any calendar year.

d. The secondary fuel constitutes less than 1% of the unit's fuel consumption within a 12 consecutive month period.

Also, NR 428.04(4)(c), 428.05(5)(c), and 428.24(1)(c) contain the secondary fuel recordkeeping requirements. EPA is proposing that these revisions are approvable since they clarify the applicability of emission limits and monitoring requirements when a facility uses more than one type of fuel.

B. Procedures for Approving a Site-Specific Emission Limit Alternative

Section NR 428.055 provides a pathway for facilities to request a site-specific emission limit if the facility demonstrates that compliance with requirements under sections NR 428.04 or 428.05 are technologically or economically infeasible. The proposed site-specific emission limit is only effective after it has been approved into the State Implementation Plan (SIP) by EPA. These revisions are approvable since they explain the steps needed to implement a site-specific alternative emission limit.

C. Clarification of Monitoring Requirements for Specific Categories of Emissions Units

Wisconsin has created language under sections NR 428.08(2)(e), 428.08(2)(f), and 428.08(3) that clarifies monitoring requirements and exceptions for NO_X emissions units such as kilns, furnaces, asphalt plants, process heating units, and engines. Section NR 428.02(2)(g) incorporates an alternative to operating a continuous emissions monitoring system (CEMS) by meeting operational and performance testing requirements that are consistent with the SIP-approved compliance demonstration requirements for emission limitations under s. NR 428.23(1)(b). Section NR 428.08(2)(g)4. a. requires that emissions performance tests be conducted according to Method 7, 7A, 7B, 7C, 7D, or 7E under 40 CFR part 60, appendix A. Section NR 484.04 table 2 Row (15m), which incorporates these Federal test methods by reference, is revised to cross-reference to section NR 428.08(2)(g)(4)(a). These revisions are approvable since they clarify the monitoring requirements and exceptions for NO_X emission units subject to this rule.

D. Revision of Compliance Monitoring Plan Submittal Deadline

Wisconsin has revised its deadline for compliance monitoring plan submittals under section NR 428.07(1)(a)2., Wis. Adm. Code, from “at least 180 days prior to initial operation” to “at least 180 days prior to initial operation, or an alternative date less than 180 days approved by the department.” The previous rule language required plans to be submitted 180 days before initial operation. This means a source would have been required to wait for the 180-day period to end prior to operating, even if the source was permitted and physically capable of operation prior to that date. This revised rule is approvable since it streamlines the implementation of this section by allowing the source to request an alternative date to avoid the waiting period if warranted.

E. Clarification of Exception

Wisconsin's revisions clarify that the unit exception under section NR 428.21(3), Wis. Adm. Code, applies only to units constructed before August 1, 2007, as originally intended. This revision is approvable since it clarifies which emission units qualify for this exception.

F. Definitions and Cross References

The proposed rule incorporates a definition for SIP, the acronym for State Implementation Plan, under section NR 400.03(4)(mf). Wisconsin has also added definitions for “primary fuel”, “secondary fuel”, “simple cycle stationary combustion turbine”, and “supply interruption” or “curtailment” under section NR 428.02(7i), (7p), (7u) and (7w). Wisconsin has also updated cross references through Ch. NR 428, Wis. Adm. Code, to be consistent with the proposed rule language. These administrative type revisions are approvable since they ensure terms included in the new rule language are defined and cross references are updated.

EPA has reviewed the amendments contained in Wisconsin's submittal, as discussed in detail above, and is proposing to approve the amended portions of NR 400, 428, and 484. Because these changes provide clarity and generally strengthen the currently approved SIP, EPA is proposing that these changes will not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other Clean Air Act (CAA) requirement, and therefore, fulfill section 110(l) of the CAA.

III. What action is EPA taking?

EPA is proposing to approve the revisions in NR 400, 428, and 484 of the Wisconsin Administrative Code since these changes clarify and streamline Wisconsin's NO_X control regulatory requirements.

IV. Incorporation by Reference

In this document, 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 Wisconsin rule(s) 400.03(4)(mf), 428.02(7i), 428.02(7p), 428.02(7u), 428.02(7w), 428.04(2)(i), 428.04(4)(c), 428.05(2)(b), 428.05(2)(f), 428.05(3)(f), 428.05(5)(c), 428.22(1), 428.22(3), 428.24(1)(c), 428.08(2)(e)(title), 428.08(2)(f)(title), 428.08(2)(g), 428.08(3), 484.04 Table 2 Row (15m), and 428.21(3)(d), effective April 1, 2024, discussed in section II of this preamble. EPA has made, and will continue to make, these documents generally available through https://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 14094 (88 FR 21879, April 11, 2023);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• 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.

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The WDNR did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Volatile organic compounds