76430 Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Proposed Rules 

• 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, this proposed 2006 PM2.5

clean NAAQS data determination for 

the Milwaukee-Racine, Wisconsin area 

does not have tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

the SIP is not approved to apply in 

Indian country located in the state, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Particulate Matter, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: December 17, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2012–31290 Filed 12–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0467; EPA–R05– 

OAR–2012–0538; FRL–9765–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Wisconsin; Prevention of Significant 

Deterioration Greenhouse Gas 

Tailoring and Biomass Deferral Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Wisconsin State 

Implementation Plan (SIP), submitted 

by the Wisconsin Department of Natural 

Resources (WDNR) to EPA on May 4, 

2011, June 20, 2012, and September 28, 

2012. The proposed revisions modify 

Wisconsin’s Prevention of Significant 

Deterioration (PSD) program to establish 

appropriate emission thresholds for 

determining which new stationary 

sources and modification projects 

become subject to Wisconsin’s PSD 

permitting requirements for their 

greenhouse gas (GHG) emissions. 

Additionally, these revisions propose to 

defer until July 21, 2014, the application 

of the PSD permitting requirements to 

biogenic carbon dioxide (CO2) emissions 

from bioenergy and other biogenic 

stationary sources in the State of 

Wisconsin. EPA is proposing approval 

of Wisconsin’s revisions because the 

Agency has made the preliminary 

determination that these revisions are in 

accordance with the Clean Air Act 

(CAA) and EPA regulations regarding 

PSD permitting for GHGs. 

DATES: Comments must be received on 

or before January 28, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2011–0467, or EPA–R05–OAR– 

2012–0538 by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: damico.genevieve@epa.gov. 

3. Fax: (312)692–2450. 

4. Mail: Genevieve Damico, Chief, Air 

Permits Section, Air Programs Branch 

(AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: Genevieve Damico, 

Chief, Air Permits Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

Such deliveries are only accepted 

during the Regional Office normal hours 

of operation, and special arrangements 

should be made for deliveries of boxed 

information. The Regional Office official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID Nos. EPA–R05–OAR–2011– 

0467, or EPA–R05–OAR–2012–0538. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Danny 

Marcus, Environmental Engineer, at 

(312) 353–8781 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Danny Marcus, Environmental Engineer, 

Air Permits Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 353–8781, 

marcus.danny@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Proposed Rules 76431 

1 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule.’’ 75 FR 82536 

(December 30, 2010). 

2 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

3 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

5Specifically, by action dated December 13, 2010, 

EPA finalized a ‘‘SIP Call’’ that would require those 

states with SIPs that have approved PSD programs 

but do not authorize PSD permitting for GHGs to 

submit a SIP revision providing such authority. 

‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call,’’ 75 

FR 77698 (December 13, 2010). EPA has begun 

making findings of failure to submit that would 

apply in any state unable to submit the required SIP 

revision by its deadline, and finalizing FIPs for such 

states. See, e.g., ‘‘Action To Ensure Authority To 

Issue Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Finding of Failure To Submit State 

Implementation Plan Revisions Required for 

Greenhouse Gases,’’ 75 FR 81874 (December 29, 

2010); ‘‘Action To Ensure Authority To Issue 

Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan,’’ 75 

FR 82246 (December 30, 2010). Because 

Wisconsin’s SIP already authorizes WDNR to 

regulate GHGs once GHGs become subject to PSD 

requirements on January 2, 2011, Wisconsin is not 

subject to the proposed SIP Call or FIP. 

EPA. This supplementary information 

section is arranged as follows: 

I. What should I consider as I prepare my 

comments for EPA? 

II. Wisconsin’s Submittals Regarding GHGs 

III. What is the background for this proposed 

action? 

IV. What is EPA’s analysis of Wisconsin’s 

proposed SIP revision? 

V. What action is EPA Taking? 

VI. Statutory and Executive Order Reviews. 

I. What Should I Consider as I Prepare 

My Comments for EPA? 

When submitting comments, 

remember to: 

1. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

2. Follow directions—EPA may ask 

you to respond to specific questions or 

organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

3. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

4. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

5. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

6. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

7. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

8. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Wisconsin’s Submittals Regarding 

GHGs 

In separate letters, dated May 4, 2011, 

June 20, 2012, and September 28, 2012, 

WDNR submitted requests to EPA for 

approval of revisions to the State’s SIP 

to incorporate rule amendments 

adopted by Wisconsin related to GHG 

provisions. 

A. Submittal on the Tailoring Rule 

Provisions 

The first set of rules, originally 

submitted on May 4, 2011, became 

effective in the Wisconsin 

Administrative Code on September 1, 

2011. These amendments establish 

thresholds for GHG emissions in 

Wisconsin’s PSD regulations at the same 

emissions thresholds and in the same 

time frames as those specified by EPA 

in the ‘‘PSD and Title V Greenhouse Gas 

Tailoring; Final Rule,’’ 75 FR 31514 

(June 3, 2010), hereafter referred to as 

the ‘‘Tailoring Rule,’’ ensuring that 

smaller GHG sources emitting less than 

these thresholds will not be subject to 

permitting requirements for GHGs that 

they emit. The amendments to the SIP 

clarify the applicable thresholds in the 

Wisconsin SIP, address the flaw 

discussed in the ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans Final Rule,’’ 

75 FR 82536 (December 30, 2010) (the 

‘‘PSD SIP Narrowing Rule’’), and 

incorporate State rule changes adopted 

at the State level into the Federallyapproved SIP. 

B. Submittal on the Deferral of CO2

Emissions From Biogenic Sources 

On June 20, 2012, WDNR submitted 

final adopted rules related to the 

deferral of CO2 emissions from 

bioenergy and other biogenic sources 

(biogenic CO2 emissions), when 

determining whether the modification 

of a stationary source would result in a 

net emissions increase that would 

trigger PSD thresholds, and require the 

application of Best Available Control 

Technology (BACT). The adopted rules 

became effective on April 16, 2012. The 

purpose of the amendment is to 

incorporate the Federal deferral for 

biogenic CO2 emissions into the 

Wisconsin’s SIP provisions that govern 

GHG applicability. 

In today’s action, pursuant to section 

110 of the CAA, EPA is proposing to 

approve these revisions into the 

Wisconsin SIP. 

III. What is the background for this 

proposed action? 

This section briefly summarizes EPA’s 

recent GHG-related actions that provide 

the background for this proposed action. 

More detailed discussion of the 

background is found in the preambles 

for those actions. In particular, the 

background is contained in what we call 

the GHG PSD SIP Narrowing Rule,1 and 

in the preambles to the actions it cites. 

A. GHG-Related Actions 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

are distinct from one another, establish 

the overall framework for this proposed 

action on the Wisconsin SIP. Four of 

these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,2 the ‘‘Johnson Memo 

Reconsideration,’’ 3 the ‘‘Light-Duty 

Vehicle Rule,’’ 4 and the ‘‘Tailoring 

Rule.’’ Taken together and in 

conjunction with the CAA, these actions 

establish regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determine that such regulations, when 

they took effect on January 2, 2011, 

subject GHGs emitted from stationary 

sources to PSD requirements; and limit 

the applicability of PSD requirements to 

GHG sources on a phased-in basis. EPA 

promulgated this last action in the 

Tailoring Rule, which, more 

specifically, established appropriate 

GHG emission thresholds for 

determining the applicability of PSD 

requirements to GHG-emitting sources. 

PSD is implemented through the SIP 

process. Pursuant to this process in 

December 2010, EPA promulgated 

several rules to implement the new GHG 

PSD SIP program. Recognizing that 

some states had approved SIP PSD 

programs that did not apply PSD to 

GHGs, EPA issued a SIP call and, for 

some of these states, a Federal 

Implementation Plan (FIP).5

Recognizing that other states had 

approved SIP PSD programs that do 

apply PSD to GHGs, but that do so for 

sources that emit as little as 100 or 250 

tons per year (tpy) of GHGs, and that do 

not limit PSD applicability to GHGs to 


tkelley on DSK3SPTVN1PROD with 
76432 Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Proposed Rules 

6As with the Tailoring Rule, the Biomass Deferral 

addresses both PSD and Title V requirements. 

However, EPA is only taking action on WDNR’s 

PSD program as part of this action. 

the higher thresholds in the Tailoring 

Rule, EPA issued the GHG PSD SIP 

Narrowing Rule. Under that rule, EPA 

withdrew its approval of the affected 

provisions within the SIPs to the extent 

those provisions covered GHG-emitting 

sources below the Tailoring Rule 

thresholds. 

B. EPA’s Biomass Deferral Rule 

On July 20, 2011, EPA promulgated 

the final ‘‘Deferral for CO2 Emissions 

from Bioenergy and other Biogenic 

Sources Under the Prevention of 

Significant Deterioration (PSD) and Title 

V Programs’’ (Biomass Deferral). The 

following is a brief discussion of the 

deferral. For a full discussion of EPA’s 

rationale for the rule, see the notice of 

final rulemaking at 76 FR 43490 (July 

20, 2011). 

The biomass deferral delays the 

consideration of CO2 emissions from 

bioenergy and other biogenic sources 

(hereinafter referred to as ‘‘biogenic CO2

emissions’’) when determining whether 

a stationary source meets the PSD and 

Title V applicability thresholds, 

including those for the application of 

BACT6 until July 21, 2014. Stationary 

sources that combust biomass (or 

otherwise emit biogenic CO2 emissions) 

and construct or modify during the 

deferral period will avoid the 

application of PSD to the biogenic CO2

emissions resulting from those actions. 

The deferral applies only to biogenic 

CO2 emissions and does not affect nonGHG pollutants or other GHGs (e.g., 

methane (CH4) and nitrous oxide (N2O)) 

emitted from the combustion of biomass 

fuel. Also, the deferral only pertains to 

biogenic CO2 emissions in the PSD and 

Title V programs and does not pertain 

to any other EPA programs such as the 

GHG Reporting Program. 

Biogenic CO2 emissions are defined as 

emissions of CO2 from a stationary 

source directly resulting from the 

combustion or decomposition of 

biologically-based materials other than 

fossil fuels and mineral sources of 

carbon. Examples of ‘‘biogenic CO2

emissions’’ include, but are not limited 

to: 

• CO2 generated from the biological 

decomposition of waste in landfills, 

wastewater treatment or manure 

management processes; 

• CO2 from the combustion of biogas 

collected from biological decomposition 

of waste in landfills, wastewater 

treatment or manure management 

processes; 

• CO2 from fermentation during 

ethanol production or other industrial 

fermentation processes; 

• CO2 from combustion of the 

biological fraction of municipal solid 

waste or biosolids; 

• CO2 from combustion of the 

biological fraction of tire-derived fuel; 

and 

• CO2 derived from combustion of 

biological material, including all types 

of wood and wood waste, forest residue, 

and agricultural material. 

EPA recognizes that use of certain 

types of biomass can be part of the 

national strategy to reduce dependence 

on fossil fuels. Efforts are underway at 

the Federal, state and regional level to 

foster the expansion of renewable 

resources and promote bioenergy 

projects, increase domestic alternative 

energy production, enhance forest 

management and create related 

employment opportunities. Part of 

fostering this development is to ensure 

that those feedstocks with negligible net 

atmospheric impact not be subject to 

unnecessary regulation. At the same 

time, it is important that EPA have time 

to conduct its detailed examination of 

the science and technical issues related 

to accounting for biogenic CO2

emissions. The deferral is intended to be 

a temporary measure, in effect for no 

more than three years, to allow the 

Agency time to complete its work and 

determine what, if any, treatment of 

biogenic CO2 emissions should be in the 

PSD and Title V programs. The Agency 

plans to complete its science and 

technical review and any follow up 

rulemakings within the three year 

deferral period and believes that three 

years is ample time to complete these 

tasks. It is possible that the subsequent 

rulemaking, depending on the nature of 

EPA’s determinations, would supersede 

the biomass deferral rulemaking and 

become effective in fewer than three 

years. In that event, Wisconsin may be 

required to revise its SIP accordingly. 

For stationary sources co-firing fossil 

fuel and biologically-based fuel, and/or 

combusting mixed fuels (e.g., tire 

derived fuels, municipal solid waste 

(MSW)), the biogenic CO2 emissions 

from that combustion are included in 

the biomass deferral. However, the fossil 

CO2 emissions are not included in the 

deferral. Emissions of CO2 from 

processing of mineral feedstocks (e.g., 

calcium carbonate) are also not included 

in the deferral. Various methods are 

available to calculate both the biogenic 

and fossil portions of CO2 emissions, 

including those methods contained in 

the GHG Reporting Program (40 CFR 

part 98). Consistent with the other 

pollutants subject to PSD, there are no 

requirements to use a particular method 

in determining biogenic and fossil CO2

emissions. 

EPA’s final biomass deferral rule is an 

interim deferral for biogenic CO2

emissions only and does not relieve 

sources of the obligation to meet the 

PSD permitting requirements for other 

pollutant emissions that are otherwise 

applicable to the source during the 

deferral period, or that may be 

applicable to the source at a future date 

pending the results of EPA’s study and 

subsequent rulemaking action. This 

means, for example, that if the deferral 

is applicable to biogenic CO2 emissions 

from a particular source during the three 

year effective period and the study and 

future rulemaking do not provide for a 

permanent exemption from PSD 

permitting requirements for the biogenic 

CO2 emissions from a source with 

particular characteristics, then the 

deferral would end for that type of 

source and its biogenic CO2 emissions 

would have to be appropriately 

considered in any applicability 

determinations that the source may 

need to conduct for future stationary 

source permitting purposes, consistent 

with that subsequent rulemaking and 

the Final Tailoring Rule (e.g., a major 

source determination for Title V 

purposes or a major modification 

determination for PSD purposes). EPA 

also wishes to clarify that we did not 

require that a PSD permit issued during 

the deferral period be amended or that 

any PSD requirements in a PSD permit 

existing at the time the deferral took 

effect, such as BACT limitations, be 

revised or removed from an effective 

PSD permit for any reason related to the 

deferral or when the deferral period 

expires. 

40 CFR 52.21(w) requires that any 

PSD permit shall remain in effect, 

unless and until it expires or it is 

rescinded, under the limited conditions 

specified in that provision. Thus, a PSD 

permit that is issued to a source while 

the deferral was effective need not be 

reopened or amended if the source is no 

longer eligible to exclude its biogenic 

CO2 emissions from PSD applicability 

after the deferral expires. However, if 

such a source undertakes a modification 

that could potentially require a PSD 

permit and the source is not eligible to 

continue excluding its biogenic CO2

emissions after the deferral expires, the 

source will need to consider its biogenic 

CO2 emissions in assessing whether it 

needs a PSD permit to authorize the 

modification. 

Any future actions to modify, shorten, 

or make permanent the deferral for 

biogenic sources are beyond the scope 

of the biomass deferral action and this 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Proposed Rules 76433 

7 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule.’’ 75 FR 82536 

(December 30, 2010). 

8 Id. at 75 FR 82542. 

9 Id. at 75 FR 82544. 10 Id. at 75 FR 82540. 

11As explained on page 7, with respect to the first 

package for submittal regarding the Tailoring rule 

provisions, we are proposing approval based on the 

May 4, 2011 SIP submittal which was sent for 

parallel processing. EPA is awaiting the formal 

state-effective SIP revision request from WDNR. 

EPA will only then be able to prepare a final 

rulemaking action for the SIP revision with respect 

to the Tailoring rule provisions. 

proposed approval of the deferral into 

the Wisconsin SIP, and will be 

addressed through subsequent 

rulemaking. 

C. Wisconsin’s Actions 

On July 28, 2010, WDNR provided a 

letter to EPA, in accordance with the 

Tailoring Rule, confirming that the State 

has the authority to regulate GHGs in its 

PSD program. The letter provided that 

WDNR intended to apply the meaning 

of the term ‘‘subject to regulation’’ that 

was established by EPA in the Tailoring 

Rule. WDNR explained that it would 

apply the term by revising chapters NR 

400, 405, and 407 of the Wisconsin 

Administrative Code. See the docket for 

this proposed rulemaking for a copy of 

WDNR’s letter. 

Wisconsin’s initial revision consisted 

of emergency rules under the Wisconsin 

Administrative Code, since WDNR was 

unable to meet the January 2, 2011 

effective date for applicability of PSD 

for GHG’s. WDNR passed the emergency 

rules to implement the PSD program 

consistent with the Tailoring Rule on 

December 15, 2010. 

In the SIP Narrowing Rule, 75 FR 

82536 (December 30, 2010), EPA 

withdrew its approval of certain 

provisions of Wisconsin’s SIP, among 

other SIPs, to the extent that those 

provisions of the SIP apply PSD 

permitting requirements to GHG 

emissions from sources emitting at 

levels below those set in the Tailoring 

Rule.7 In this rule, EPA found that the 

affected states, including Wisconsin, 

had a flaw in their SIPs at the time they 

submitted their PSD programs, which 

was that the applicability of the PSD 

programs was potentially broader than 

the resources available to them under 

their SIP.8 Accordingly, for each 

affected state, including Wisconsin, EPA 

concluded that EPA’s SIP approval 

action was in error, under CAA section 

110(k)(6), and EPA rescinded its 

approval to the extent the PSD program 

applies to GHG-emitting sources below 

the Tailoring Rule thresholds.9 EPA 

recommended that states adopt a SIP 

revision to incorporate the Tailoring 

Rule thresholds, thereby (i) assuring that 

under state law, only sources at or above 

the Tailoring Rule thresholds would be 

subject to PSD; and (ii) avoiding 

confusion under the Federally-approved 

SIP by clarifying that the SIP applies to 

only sources at or above the Tailoring 

Rule thresholds.10

As a result, Wisconsin’s current 

approved SIP provides the state with 

authority to regulate GHGs, but only at 

and above the Tailoring Rule thresholds; 

and requires new and modified sources 

to receive a PSD permit based on GHG 

emissions only if they emit at or above 

the Tailoring Rule thresholds. 

WDNR is currently authorized to 

regulate the GHG PSD regulations 

consistent with the Tailoring Rule at the 

State level since WDNR passed 

emergency rules consistent with the 

Tailoring Rule. The combination of 

these emergency rules and the SIP 

narrowing rule has allowed WDNR to 

implement the PSD GHG regulations 

consistent with the Tailoring Rule. At 

this time, WDNR is formally seeking to 

revise its SIP with permanent rules 

(identical to the emergency rules) for 

final approval by EPA. WDNR has 

formally amended regulations to 

incorporate the Tailoring Rule 

thresholds, and has submitted its 

amendments to EPA for approval. 

IV. What is EPA’s analysis of 

Wisconsin’s proposed SIP revision? 

The regulatory revisions that WDNR 

submitted for approval on May 4, 2011, 

June 20, 2012, and September 28, 2012, 

establish thresholds for determining 

which stationary sources and 

modifications become subject to 

permitting requirements for GHG 

emissions under WDNR’s PSD program 

as well as incorporate the biomass 

deferral that delays until July 21, 2014, 

the consideration of biogenic CO2

emissions when determining whether a 

stationary source meets the PSD 

thresholds. Specifically, the submittal 

regarding the implementation of the 

Tailoring Rule includes changes to 

WDNR’s PSD regulations at NR 

400.02(74m), NR 400.03(3)(om), NR 

400.03(4)(go) and (kg), NR 405.02(28m), 

and NR 405.07(9). 

A. WDNR’s Revisions Regarding the 

Tailoring Rule Provisions 

Wisconsin is currently a SIP approved 

state for the PSD program, and has 

incorporated EPA’s 2002 New Source 

Review (NSR) reform revisions, 67 FR 

80186 (December 31, 2002), for PSD into 

its SIP, 73 FR 76560 (December 17, 

2008). In a letter provided to EPA on 

July 28, 2010, WDNR notified EPA of its 

interpretation that Wisconsin currently 

has the authority to regulate GHGs 

under its NR 400 and NR 405 PSD 

regulations. The current WDNR program 

(adopted prior to the promulgation of 

EPA’s Tailoring Rule) applies to major 

stationary sources (having the potential 

to emit at least 100 tpy or 250 tpy or 

more of a regulated NSR pollutant, 

depending on the type of source) or 

modifications undertaken in areas 

designated attainment or unclassifiable 

with respect to the NAAQS. 

Among the changes WDNR has 

undertaken, WDNR has revised NR 400 

to add the definition of ‘‘Greenhouse 

gases’’. WDNR has also revised NR 405 

to define ‘‘Subject to regulation under 

the Act’’, and to establish the new 

tailoring rule thresholds for GHG 

applicability. 

B. WDNR’s Revisions Regarding the 

Deferral of CO2 Emissions From 

Biogenic Sources 

With respect to the changes 

undertaken by WDNR regarding the 

biomass deferral rule, WDNR has 

revised 285.60 and 285.63 of the Wis. 

State Statutes. Sections 285.60(3m) and 

285.63(3m) have been created to 

establish that emissions of GHG’s from 

biogenic CO2 emissions are exempt from 

GHG PSD permitting consistent with 40 

CFR 51.66(b)(48). Consistent with 

Wisconsin’s formal request within the 

June 20, 2012 submittal, we are 

proposing to approve only revisions 

with respect to PSD for the biomass 

deferral rule. 

V. What action is EPA taking? 

EPA is proposing to approve 

Wisconsin’s May 4, 2011, June 20, 2012, 

and September 28, 2012, SIP submittals, 

relating to PSD requirements for GHGemitting sources. Specifically, 

Wisconsin’s proposed SIP revisions 

establish appropriate emissions 

thresholds for determining PSD 

applicability to new and modified GHGemitting sources in accordance with 

EPA’s Tailoring Rule and biomass 

deferral rule. EPA has made the 

preliminary determination that these 

SIP submittals are approvable because 

they are in accordance with the CAA 

and EPA regulations regarding PSD 

permitting for GHGs.11

If EPA does approve Wisconsin’s 

changes to its air quality regulations to 

incorporate the appropriate thresholds 

for GHG permitting applicability into 

WDNR’s SIP, then 40 CFR 52.2572(b), as 

included in EPA’s SIP Narrowing Rule, 

which codifies EPA’s limiting its 


tkelley on DSK3SPTVN1PROD with 
76434 Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Proposed Rules 

approval of WDNR’s PSD SIP to not 

cover the applicability of PSD to GHGemitting sources below the Tailoring 

Rule thresholds, is no longer necessary. 

In this proposed action, EPA is also 

proposing to amend 40 CFR 52.2572 to 

remove this unnecessary regulatory 

language. 

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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• 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 (Public Law 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, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

and Reporting and recordkeeping 

requirements. 

Dated: December 17, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2012–31191 Filed 12–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of Inspector General 

42 CFR Part 1001 

Solicitation of New Safe Harbors and 

Special Fraud Alerts 

AGENCY: Office of Inspector General 

(OIG), HHS. 

ACTION: Notice of intent to develop 

regulations. 

SUMMARY: In accordance with section 

205 of the Health Insurance Portability 

and Accountability Act of 1996 

(HIPAA), this annual notice solicits 

proposals and recommendations for 

developing new and modifying existing 

safe harbor provisions under the Federal 

anti-kickback statute (section 1128B(b) 

of the Social Security Act), as well as 

developing new OIG Special Fraud 

Alerts. 

DATES: To ensure consideration, public 

comments must be delivered to the 

address provided below by no later than 

5 p.m. on February 26, 2013. 

ADDRESSES: In commenting, please refer 

to file code OIG–121–N. Because of staff 

and resource limitations, we cannot 

accept comments by facsimile (fax) 

transmission. 

You may submit comments in one of 

three ways (no duplicates, please): 

1. Electronically. You may submit 

electronic comments on specific 

recommendations and proposals 

through the Federal eRulemaking Portal 

at http://www.regulations.gov. 

2. By regular, express, or overnight 

mail. You may send written comments 

to the following address: Patrice Drew, 

Office of Inspector General, 

Congressional and Regulatory Affairs, 

Department of Health and Human 

Services, Attention: OIG–121–N, Room 

5541C, Cohen Building, 330 

Independence Avenue SW., 

Washington, DC 20201. Please allow 

sufficient time for mailed comments to 

be received before the close of the 

comment period. 

3. By hand or courier. If you prefer, 

you may deliver, by hand or courier, 

your written comments before the close 

of the comment period to Patrice Drew, 

Office of Inspector General, Department 

of Health and Human Services, Cohen 

Building, Room 5541C, 330 

Independence Avenue SW., 

Washington, DC 20201. Because access 

to the interior of the Cohen Building is 

not readily available to persons without 

Federal Government identification, 

commenters are encouraged to schedule 

their delivery with one of our staff 

members at (202) 619–1368. 

For information on viewing public 

comments, please see the 

Supplementary Information section. 

FOR FURTHER INFORMATION CONTACT: 

Patrice Drew, Congressional and 

Regulatory Affairs Liaison, Office of 

Inspector General, (202) 619–1368. 

SUPPLEMENTARY INFORMATION: 

Submitting Comments: We welcome 

comments from the public on 

recommendations for developing new or 

revised safe harbors and Special Fraud 

Alerts. Please assist us by referencing 

the file code OIG–121–N. 

Inspection of Public Comments: All 

comments received before the end of the 

comment period are available for 

viewing by the public. All comments 

will be posted on http:// 

www.regulations.gov as soon as possible 

after they have been received. 

Comments received timely will also be 

available for public inspection as they 

are received at Office of Inspector 

General, Department of Health and 

Human Services, Cohen Building, 330 

Independence Avenue SW., 

Washington, DC 20201, Monday 

through Friday from 9:30 a.m. to 5 p.m. 

To schedule an appointment to view 

public comments, phone (202) 619– 

1368. 

I. Background 

A. OIG Safe Harbor Provisions 

Section 1128B(b) of the Social 

Security Act (the Act) (42 U.S.C. 1320a– 

7b(b)) provides criminal penalties for 

individuals or entities that knowingly 

and willfully offer, pay, solicit, or 

receive remuneration to induce or 

reward business reimbursable under the 

Federal health care programs. The 


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