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[Federal Register: March 24, 2010 (Volume 75, Number 56)]
[Proposed Rules]               
[Page 14116-14122]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr10-18]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-0587; FRL-9130-1]

 
Approval of Implementation Plans of Wisconsin: Nitrogen Oxides 
Reasonably Available Control Technology

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Wisconsin State 
Implementation Plan (SIP) submitted on June 12, 2007 and on September 
14, 2009. These revisions incorporate provisions related to the 
implementation of nitrogen oxides (NOX) Reasonably Available 
Control Technology (RACT) for major sources in the Milwaukee-Racine and 
Sheboygan ozone nonattainment areas. EPA is proposing to approve SIP 
revisions that address the requirements found in section 182(f) of the 
Clean Air Act (CAA). EPA is also proposing to approve other 
miscellaneous rule changes that affect NOX regulations that 
were previously adopted and approved into the SIP.

DATES: Comments must be received on or before April 23, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0587, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: damico.genevieve@epa.gov.
    3. Fax: (312) 385-5501.
    4. Mail: Genevieve Damico, Acting Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Genevieve Damico, Acting Chief, Criteria 
Pollutant 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 No. EPA-R05-OAR-
2007-0587. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://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 e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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 and any form of encryption and should be 
free of any defects or viruses. For additional information about EPA's 
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://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 Douglas Aburano, Environmental 
Engineer, at (312) 353-6960, before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-6960, aburano.douglas@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Action Is EPA Proposing To Take?
II. W hat Are the NOX RACT Requirements?
III. Analysis of Wisconsin's NOX RACT Submittal
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing To Take?

    Throughout this document wherever ``we,'' ``us,'' or ``our'' are 
used, we mean EPA.

NOX RACT Approval

    EPA is proposing to approve revisions to Wisconsin's SIP, submitted 
on June 12, 2007 and on September 14, 2009. The CAA amendments of 1990 
introduced the requirement for existing major stationary sources of 
NOX in nonattainment areas to install and operate 
NOX RACT. Specifically, section 182(b)(2) of the CAA 
requires States to adopt RACT for all major sources of volatile organic 
compounds (VOC) in ozone nonattainment areas; section 182(f) extends 
the RACT provisions to major stationary sources of NOX.
    Wisconsin was not required to adopt NOX RACT rules under 
the 1-hour ozone standard because all of the ozone nonattainment areas 
in Wisconsin were

[[Page 14117]]

covered by a NOX waiver that was approved in the Federal 
Register on January 26, 1996 (61 FR 2428). This NOX waiver, 
issued under section 182(f) of the CAA, exempted the affected areas 
from the RACT and nonattainment New Source Review requirements for 
major stationary sources of NOX. Wisconsin is, however, 
required to adopt NOX RACT rules for the 1997 8-hour ozone 
standard because a NOX waiver has not been issued under this 
ozone standard. The NOX RACT submittals were due on 
September 15, 2006.

Approval of Other Non-RACT NOX Rules

    Additionally, the Wisconsin Department of Natural Resources (WDNR) 
submitted minor additions and amendments to other non-RACT 
NOX rules as part of the June 12, 2007 and September 14, 
2009 submittals. The non-RACT NOX rules that are being 
changed were originally approved into Wisconsin's SIP on November 13, 
2001 (66 FR 56931). These other NOX rules were submitted as 
part of Wisconsin's reasonable further progress SIP for the 1-hour 
ozone standard.

II. What Are the NOX RACT Requirements?

    The CAA amendments of 1990 introduced the requirement for existing 
major stationary sources of NOX in nonattainment areas to 
install and operate NOX RACT. Specifically, section 
182(b)(2) of the CAA requires States to adopt RACT for all major 
sources of VOC in ozone nonattainment areas, and section 182(f) 
requires the RACT provisions for major stationary sources of oxides of 
nitrogen. ``RACT'' is defined as the lowest emission limitation that a 
particular source is capable of meeting by the application of control 
technology that is reasonably available considering technological and 
economic feasibility (44 FR 53762).
    Section 302 of the CAA defines major stationary source as any 
facility which has the potential to emit 100 tons per year of any air 
pollutant. For serious ozone nonattainment areas, a major source is 
defined by section 182(c) as a source that has the potential to emit 50 
tons of NOX per year. For severe ozone nonattainment areas, 
a major source is defined by section 182(d) as a source that has the 
potential to emit 25 tons per year.
    These requirements can be waived under section 182(f) of the CAA. 
See EPA memo dated December 16, 1993 from John Seitz, Director, Office 
of Air Quality Planning and Standards to Air Division Directors 
entitled, ``Guideline for Determining the Applicability of Nitrogen 
Oxide Requirements Under Section 182(f).'' Waivers can be granted if 
the Administrator determines that any one of the following tests is 
met:
    1. In any area, the net air quality benefits are greater in the 
absence of NOX reductions from the sources concerned;
    2. In nonattainment areas not within an ozone transport region, 
additional NOX reductions would not contribute to ozone 
attainment in the area; or
    3. In nonattainment areas within an ozone transport region, 
additional NOX reductions would not produce net ozone air 
quality benefits in the transport region.
    Wisconsin received a NOX waiver under the 1-hour ozone 
standard on January 26, 1996 and, therefore, was not required to adopt 
NOX RACT regulations for that standard. However, there are 
areas in Wisconsin that are nonattainment for the 1997 8-hour ozone 
standard. These areas were designated nonattainment on June 15, 2004 
(69 FR 23947). Because Wisconsin does not have a waiver for the 
NOX requirements for the 1997 8-hour ozone standard, 
NOX RACT rules are required in the areas that are classified 
as moderate or above.
    Since the only areas in Wisconsin that are required to adopt 
NOX RACT are classified as moderate for the 1997 8-hour 
ozone standard, the rules that have been adopted only need to address 
sources with the potential to emit 100 tons per year. The 
NOX RACT rules were to have been submitted September 15, 
2006.

III. Analysis of Wisconsin's NOX RACT Submittal

A. Nature of Wisconsin's Submittal

    On June 12, 2007, Wisconsin submitted rules and supporting material 
for addressing the NOX RACT requirements. WDNR held a public 
hearing for these rules on March 15, 2007. WDNR also provided a comment 
period that was announced on February 2, 2007 and ended on March 19, 
2007.
    On September 14, 2009, Wisconsin submitted a supplemental SIP 
revision and additional supporting material for addressing the 
NOX RACT requirements. WDNR held a public hearing for these 
rules on December 5, 2008. WDNR also provided a comment period that was 
announced on October 30, 2008 and ended on December 10, 2008.

B. Summary of Wisconsin's Rules

June 12, 2007 Submittal
    Chapter NR 428 of the Wisconsin Administrative Code Environmental 
Protection Air Pollution Control, entitled, ``Control of Nitrogen 
Compound Emissions,'' includes provisions limiting the emissions of 
NOX from stationary sources in Wisconsin. While Ch. NR 428 
contains many sections, Wisconsin submitted only a portion of them to 
address the NOX RACT requirements. Specifically, Wisconsin 
submitted rules 428.02(7m), 428.04(2)(h)1. and 2., 428.05(3)(e)1. to 
4., 428.20 through 428.26, 484.04(13), 484.04(15m) and (16m), and 
484.04(21m), (26m)(bm), (26m)(d), and (27) for Federal approval.
    The RACT rules establish NOX emission limitations for 
major sources in the moderate ozone nonattainment areas of Wisconsin, 
which include the counties of Kenosha, Milwaukee, Ozaukee, Racine, 
Sheboygan, Washington, and Waukesha. Major sources in those counties 
were required to be in compliance with the NOX RACT program 
by May 1, 2009. The RACT rules have been adopted and passed by all 
necessary State law-making bodies, and the rules became effective on 
August 1, 2007.
    The RACT rules require individual emission units at a major source 
to be in compliance with specific emission limitations defined by 
source category and fuel types. The NOX emission limitations 
are defined based on available control technologies and cost-
effectiveness of up to $2,500 per ton of controlled NOX. 
However, the emission limits are not applicable if the unit operates 
below an ozone season threshold level that is related to cost-
effectiveness of control. Once a unit exceeds the threshold during any 
ozone season after the effective date of the rule, it is always subject 
to the RACT requirements. A phased compliance schedule is specified for 
electric utility coal fired boilers to account for installation and 
electric reliability needs. All emission limitations across the source 
categories are expressed on a 30-day rolling basis and are to be met on 
a year-round basis.
    The rules require compliance monitoring, record keeping, and 
reporting specified for each source category. For units already 
required to do so, emissions are to be measured according to 50 CFR 
Part 75 CEMs monitoring requirements. Remaining units are specified by 
source category to either install and operate continuous NOX 
emission monitors according to 40 CFR Part 60 methods or perform stack 
testing every two years. The rules specify the methods and calculations 
used to tabulate emissions under each requirement. Units are required 
to have

[[Page 14118]]

a malfunction and abatement plan for the monitoring system.
    The rules establish a number of default exemptions from the 
emission limits for units meeting certain conditions. The exemptions 
streamline compliance by identifying sources for which control cost-
effectiveness is beyond that considered in the rules. These sources 
otherwise would likely qualify for a variance to the RACT requirement. 
The rules identify minimal recordkeeping requirements to ensure 
continued qualification under the applicable exemption. There are 
generally two bases for the exemptions: (1) unit types or applications 
with low operation levels; and (2) units which are meeting the emission 
limit and have sufficient monitoring requirements in place or are well 
controlled and for which the incremental control to meet the RACT 
emission limit is significantly more costly.
    Alternative compliance methods in the rule include emissions 
averaging, a case-by-case RACT determination, and a Clean Air 
Interstate Rule (CAIR) equivalency provision. These programs have been 
structured to meet EPA's guidance for economic incentive programs, 
public notification, and review requirements.
    Lastly, to address utility reliability issues, the rules allow an 
entity to request a temporary waiver of an emission limit. This 
provision establishes a process to evaluate an emission limit 
exceedance due to an uncontrollable or unforeseeable event during the 
course of which service must be maintained to un-interruptible 
customers. The request for a waiver is after the event and is subject 
to review and approval of both WDNR and EPA.
    The major provisions of the RACT rules are:

NR 428.02 Definitions
NR 428.20 Applicability and purpose.
NR 428.21 Emission unit exceptions.
NR 428.22 Emission limitation requirements.
NR 428.23 Demonstrating compliance with emission limitations.
NR 428.24 Record keeping and reporting.
NR 428.25 Alternative compliance methods and approaches.
NR 428.26 Utility reliability waiver.
    Provisions related to the RACT rule are:

NR 400 Air pollution control definitions
NR 439 Reporting, recordkeeping, testing, inspection, and determination 
of compliance requirements
NR 484.04 Incorporation by reference.

    Several non-substantive modifications are included in this package 
addressing the units of applicable emission limitations for 
reciprocating engines under existing NR 428 requirements.
September 14, 2009 Submittal
    The Wisconsin Natural Resources Board adopted an order to: renumber 
and amend 428.22(1)(d); amend NR 428.04(1) and (3)(b), 428.05(1) and 
(4)(b)2., 428.07(intro.), (1)(a) and (b)1. and 3., (3) and (4)(c), 
428.08(title) and (2)(title), 428.09(2)(a), 428.20(1), 
428.22(2)(intro.), 428.23(1)(b)1., 428.24(1)(b)(intro.) and 
428.25(1)(a)1.a. and c. and (3)(b); and to create NR 428.02(7e), 
428.08(2)(f), 428.12, 428.22(1)(d)2., and 428.23(1)(b)9., relating to 
modification of existing rules for control of NOX emitted by 
stationary sources in the ozone nonattainment area in southeastern 
Wisconsin. The proposed revisions relate to issues for SIP 
approvability and miscellaneous implementation issues.
    The rule revisions address two areas: (1) Incorporating the term 
and a definition of ``maximum theoretical emissions'' in place of 
``potential to emit'' in order to adequately identify major sources; 
and (2) revisions identified by the department and stakeholders which 
clarify and facilitate implementation of requirements within ch. NR 
428.
    There are a number of non-substantive revisions in the rule that 
address clarification and implementation issues, which are consistent 
with the original intent of the rules. These revisions include:
    1. Removal of the reference to the Federal CAIR and usage of 
standard terms in identifying the appropriate units.
    2. Allowance of additional time for sources to submit an 
application for an alternative emission limit or compliance schedule.
    3. Allowance for a source with an approved alternative RACT 
requirement to participate in emissions averaging for purposes of 
demonstrating compliance with the original RACT limitation or schedule.
    4. The revision avoids triggering new source NOX limits 
under rule NR 428.04 when the modification is made solely to comply 
with existing source NOX control requirements under rules NR 
428.05 or 428.22.
    5. Clarification and simplification of monitoring and reporting 
requirements.
    6. Removal of the reference to ``modified'' sources in the 
applicability statement in rule NR 428.05(1).
    7. Identification of limited periods when the current form of the 
emission limitation for glass furnaces is not appropriate. During these 
periods the numerical emission limit does not apply. Instead, the 
source is required to minimize NOX emissions through 
combustion optimization techniques described in rule NR 439.096.
    There are no changes from the June 12, 2007 submittal that alter 
the primary emission limitations or that alter those individual 
emissions units subject to emission requirements.

C. Review of Wisconsin Submittal

NOX RACT Portion of June 12, 2007 and September 14, 2009 
Submittals
    The WDNR created Subchapter IV entitled ``NOX Reasonably 
Available Control Technology Requirements'' to address the 
NOX RACT requirements of the CAA. Subchapter IV consists of 
rules 428.20 through 428.26.
    Rule 428.20 ``Applicability and Purpose'' establishes the 
geographic scope of the rule and the sources that are subject to the 
rule. The rules apply in the nonattainment areas that are classified as 
moderate under the 1997 8-hour ozone standard. There are no 
nonattainment areas with a classification higher than moderate in 
Wisconsin. Therefore, the rules apply in the Milwaukee-Racine area 
(Kewaunee County, Milwaukee County, Ozaukee County, Racine County, 
Washington County, and Waukesha County) and Sheboygan County. The 
requirements apply to the owner or operator of a NOX 
emissions unit which is located at a facility with a combined total 
potential to emit for all NOX emissions units of 100 tons 
per year or more. This is consistent with the CAA and EPA guidance. 
Rule 428.20 refers to Wisconsin's definition of ``Maximum theoretical 
emissions'' found in Wisconsin rule NR 428.02(7e). These two rules, in 
combination, satisfy the requirements for adequate applicability.
    NR 428.02 ``Definitions'' adds the definition of ``maximum 
theoretical emissions,'' rule NR 428.02(7e). This addition is 
acceptable. It is referred to under NR 428.20, the ``Applicability and 
purpose'' section of the NOX RACT rules.
    NR 428.21 ``Emission unit exceptions'' exempts certain units from 
emission limits but still requires monitoring emissions and keeping 
records for these units. Should these units no longer qualify for an 
exemption, emission limits will then apply. The rule establishes a 
number of default exemptions from the emission limits for units meeting 
certain conditions. The rule identifies minimal recordkeeping 
requirements to ensure continued qualification under the applicable 
exemption. There are generally two

[[Page 14119]]

bases for the exemptions: (1) Unit types or applications with low 
operation levels; and (2) units which are meeting the emission limit 
and have sufficient monitoring requirements in place or are well 
controlled and for which the incremental control to meet the RACT 
emission limit is significantly more costly. Wisconsin has justified 
these exemptions based on cost-effectiveness. The technical support 
document found in the docket associated with this action has more 
details on the justification for these exemptions.
    The one exemption not based on cost-effectiveness but rather on a 
technical basis is the exemption under rule NR 428.21(g) for a 
``gaseous fuel fired unit used to control VOC emissions''. The primary 
consideration in design and operation of such an emissions unit is for 
the efficient destruction of VOC emissions and not to minimize 
NOX emissions. For this reason this exemption is 
appropriate.
    NR 428.22 ``Emission limitation requirements'' establishes 
NOX emission rate limits by source category applicable to 
emission units operating above the applicability threshold. The source 
categories, operating levels, and emission limitations are presented in 
Table 1. The emission limits contained in the rule are a 30-day rolling 
average requirement applicable on a year-round basis. A unit subject to 
an emission limitation must demonstrate compliance on an individual 
basis by May 1, 2009. These limits are consistent with EPA guidance for 
the various categories for which Alternative Control Technology 
documents have been issued and with more recent State and Federal 
NOX control programs.

                                Table 1--NOX RACT Categorical Emission Limits \1\
----------------------------------------------------------------------------------------------------------------
                                   Capacity
       Source category             threshold             NOX emission limitation (30 day rolling average)
----------------------------------------------------------------------------------------------------------------
Solid Fuel-Fired Boiler......  =>1000 mmBtu/hr.  Tangential-fired, 0.10 lbs/mmBtu.
                                                 Wall-fired, 0.10 lbs/mmBtu.
                                                 Cyclone-fired, 0.10 lbs/mmBtu.
                                                 Fluidized bed-fired, 0.10 lbs/mmBtu.
                                                 Arch-fired, 0.18 lbs/mmBtu.
                               =>500-999 mmBtu/  Tangential-fired, 0.15 lbs/mmBtu.
                                hr.
                                                 Wall-fired (low heat release), 0.15 lbs/mmBtu.
                                                 Wall-fired (high heat release), 0.17 lbs/mmBtu.
                                                 Cyclone-fired, 0.15 lbs/mmBtu.
                                                 Fluidized bed-fired, 0.10 lbs/mmBtu.
                                                 Arch-fired, 0.18 lbs/mmBtu.
                               =>250-495 mmBtu/  Tangential-fired, 0.15 lbs/mmBtu.
                                hr.
                                                 Wall-fired (low heat release), 0.15 lbs/mmBtu.
                                                 Wall-fired (high heat release), 0.17 lbs/mmBtu.
                                                 Cyclone-fired, 0.15 lbs/mmBtu.
                                                 Fluidized bed-fired, 0.10 lbs/mmBtu.
                                                 Arch-fired, 0.18 lbs/mmBtu.
                                                 Stoker-fired, 0.20 lbs/mmBtu.
                               50-249 mmBtu/hr.  Tangential-fired, 0.15 lbs/mmBtu.
                                                 Wall-fired (low heat release), 0.15 lbs/mmBtu.
                                                 Wall-fired (high heat release), 0.17 lbs/mmBtu.
                                                 Cyclone-fired, 0.15 lbs/mmBtu.
                                                 Fluidized bed-fired, 0.10 lbs/mmBtu.
                                                 Arch-fired, 0.18 lbs/mmBtu.
                                                 Stoker-fired, 0.25 lbs/mmBtu.
Gaseous or Liquid Fuel-Fired   =>100 mmBtu/hr..  Gaseous fuel, 0.08 lbs/mmBtu.
 Boiler.
                               =>100 mmBtu/hr..  Distillate oil, 0.10 lbs/mmBtu.
                               =>65 mmBtu/hr...  Residual or waste oil, 0.15 lbs/mmBtu.
Lime Kiln (manufacturing)....  =>50 mmBtu/hr...  Gaseous fuel, 0.10 lbs/mmBtu.
                                                 Distillate oil, 0.12 lbs/mmBtu.
                                                 Residual oil, 0.15 lbs/mmBtu.
                                                 Coal, 0.60 lbs/mmBtu.
                                                 Coke, 0.70 lbs/mmBtu.
Glass Furnace \2\............  =>50 mmBtu/hr...  2.0 lbs/ton of glass.
Metal Reheat, Galvanizing,     =>75 mmBtu/hr...  0.08 lbs/mmBtu.
 and Annealing Furnace.
Asphalt Plants...............  =>65 mmBtu/hr...  Gaseous fuel, 0.15 lbs/mmBtu.
                                                 Distillate oil, 0.20 lbs/mmBtu.
                                                 Residual or waste oil, 0.27 lbs/mmBtu.
Process Heating..............  =>100 mmBtu/hr..  Gaseous fuel, 0.10 lbs/mmBtu.
                               =>100 mmBtu/hr..  Distillate oil, 0.12 lbs/mmBtu.
                               =>65 mmBtu/hr...  Residual or waste oil, 0.18 lbs/mmBtu.
Simple Cycle Combustion        =>50 MW.........  Natural gas, 25 ppmdv @ 15% O2.
 Turbine.
                                                 Distillate oil, 65 ppmdv @ 15% O2.
                                                 Biologically derived fuel, 35 ppmdv @ 15% O2.
                               25-49 MW........  Natural gas, 42 ppmdv @ 15% O2.
                                                 Distillate oil, 96 ppmdv @ 15% O2.
                                                 Biologically derived fuel, 35 ppmdv @ 15% O2.
Combined Cycle Turbine.......  =>25 MW.........  Natural gas, 9 ppmdv @ 15% O2.
                                                 Distillate oil, l42 ppmdv @ 15% O2.
                               10-24 MW........  Natural gas, 42 ppmdv @ 15% O2.
                                                 Distillate oil, 42 ppmdv @ 15% O2.
                               =>25 MW.........  Biologically derived fuel, 35 ppmdv @ 15% O2.
Reciprocating Engine.........  =>500 horsepower  Rich-burn units, 3.0 gr/bhp-hr.

[[Page 14120]]


                                                 Lean-burn units, 3.0 gr/bhp-hr.
                                                 Distillate-fuel units, 3.0 gr/bhp-hr.
                                                 Natural Gas/Dual fuel, 3.0 gr/bhp-hr.
----------------------------------------------------------------------------------------------------------------
(1) The compliance deadline for most sources was May 1, 2009. However, electric generating units have interim
  emission limits and extended compliance time frames. See Table 2.
(2) During periods when the furnace is operating for purposes other than producing glass, NOX emissions must be
  minimized.

    For electric utility coal-fired boilers the rule sets a phased 
compliance schedule with interim emission limits for May 1, 2009 and 
final RACT emission limits by May 1, 2013. The purpose of the phased 
compliance schedule is to allow the electric utilities the necessary 
time to install post combustion controls while maintaining a reliable 
electric supply. Some control technologies, like selective catalytic 
reduction equipment, can take up to two years to install for an 
individual project. This is compounded by the fact that utilities are 
subject to limited installation windows that further restrict the 
installation schedule. On this basis, multiple installations cannot be 
fully accomplished on all electric utility boilers within the moderate 
nonattainment area by 2009. The schedule of phased limitations is 
provided in Table 2.

                      Table 2--Compliance Schedule for Electric Utility Coal-Fired Boilers
----------------------------------------------------------------------------------------------------------------
                                                               Emission limits (lbs/mmbtu)
                                       -------------------------------------------------------------------------
            Compliance date             Coal-fired boilers >1000 mmbtu/ Coal-fired boilers >500 and 
                                                      hr                                   hr
----------------------------------------------------------------------------------------------------------------
May 1, 2009...........................  wall fired = 0.15.............  wall fired = 0.20.
                                        tangential fired = 0.15.......  tangential fired = 0.15.
                                        cyclone = 0.15................  cyclone = 0.20.
                                        fluidized bed = 0.15..........  fluidized bed = 0.15.
                                        arch fired = 0.18.............  arch fired = 0.18.
May 1, 2013...........................  wall fired = 0.10.............  wall fired = 0.17.
                                        tangential fired = 0.10.......  tangential fired = 0.15.
                                        cyclone = 0.10................  cyclone = 0.15.
                                        fluidized bed = 0.10..........  fluidized bed =0.10.
                                        arch fired = 0.18.............  arch fired = 0.18.
----------------------------------------------------------------------------------------------------------------

    The emission limits for 2009 reflect NOX controls which 
can be installed within the intervening timeframe including combustion 
modifications and selective non-catalytic reduction systems. The final 
2013 compliance date reflects the timing necessary for anticipated 
installations of selective catalytic reduction systems. The phased 
approach is also consistent with operating generating units on a 
system-wide basis and utilization of a multi-facility averaging 
program. In this manner, the phased emission limits set forth a RACT 
level of NOX control across utilities boilers on a schedule 
which is expeditious as practicable.
    Since the RACT emission limits are implemented on a schedule which 
is as expeditious as practicable the proposed phasing of electric 
utility boiler emission limits is acceptable.
    NR 428.23 ``Demonstrating compliance with emission limitations'' 
requires most sources subject to emission limitations to demonstrate 
compliance using continuous emissions monitoring. For electric 
generating unit sources this monitoring is based on 40 CFR part 75 
methods, and for industrial sources monitoring is based on 40 CFR part 
60 methods. For a few source categories with low variability in 
operations or emission rates, compliance is demonstrated by periodic 
stack testing. The emission monitoring requirements are consistent with 
existing State and EPA programs. The rule will also allow a source to 
request approval of an alternative monitoring method. Any alternative 
monitoring method must be approved by both WDNR and EPA. These 
compliance methods are acceptable.
    NR 428.24 ``Record keeping and reporting'' requires all affected 
unit owners and operators to maintain records and submit reports to the 
WDNR. These records and reports will be used to determine compliance, 
instances of noncompliance and also to determine if exempt units 
continue to remain exempt by staying below specific thresholds. These 
provisions are acceptable.
    NR 428.25 ``Alternative compliance methods and approaches'' 
provides affected units with several compliance options:

    1. Emissions from one or more units subject to a RACT emission 
limitation may be averaged with other similar units at an affected 
facility. Except for ``new units'', which are excluded from 
averaging, all similar units, both RACT and non-RACT affected units, 
at a facility must be included in the averaging program. This is to 
eliminate a potential shift in generation/production to any unit not 
subject to the RACT requirements.
    2. Emissions averaging applies the current applicable emission 
limit of each unit on a heat input weighted basis to determine an 
average facility or system emission limit. EPA requires that 
averaging programs like the system averaging in the rule have an 
additional emission reduction applied to the facility or system 
emission limit as an environmental benefit in lieu of the provided 
flexibility. (See Improving Air Quality with Economic Incentive 
Programs, EPA-452/R-01-001, Jan. 2001.) Under facility averaging, 
the environmental benefit is the implementation of an annual and 
ozone season mass cap.
    3. Emissions units may participate in an emission averaging 
program across multiple units and facilities. Each unit can only 
participate in one type of averaging program on an annual basis 
(facility or system-wide). The environmental benefit is the EPA 
default

[[Page 14121]]

of 10% reduction in the emission rate on an annual and an ozone 
season basis.
    4. An individual source may request an alternative emission 
limitation or compliance schedule, with a determination made on a 
case-by-case basis by the WDNR. An alternative emission limit may be 
the result of an engineering assessment that demonstrates RACT 
controls are not economically or technically feasible for that unit. 
Any determination of an alternative limit or schedule must also 
account for a unit's ability to participate in either a facility or 
system-wide emissions averaging program. These alternative RACT 
determinations must also have written EPA approval.

    As mentioned above, these alternative compliance methods must meet 
the requirements found in EPA's Economic Incentive Policy or guidance 
(Improving Air Quality with Economic Incentive Programs, EPA-452/R-01-
001, Jan. 2001).
    Rule 428.25(3) allows sources that are subject to CAIR under 40 CFR 
Part 97 to demonstrate compliance with NOX RACT requirements 
by complying with CAIR requirements. EPA is not acting on this portion 
of Wisconsin's rules. At the time these rules were adopted, EPA 
guidance allowed approval of these provisions. On December 23, 2008, 
the D.C. Circuit Court remanded CAIR to the EPA. Until EPA issues a 
replacement rule for CAIR, EPA cannot approve any NOX RACT 
rules making a claim of ``CAIR equals RACT.'' Once a replacement rule 
for CAIR is issued, EPA can revisit the ``CAIR equals RACT'' provisions 
and evaluate them for approvability.
    NR 428.26 ``Utility reliability waiver '' contains a provision that 
allows an electric or steam utility or natural gas transmission 
facility to request a waiver from an applicable emission limit for a 
period of time due to reliability issues. This provision acknowledges 
that these facilities serve non-interruptible customers and 
uncontrollable events may occur which result in an increase in 
emissions. Facilities generating steam for process and manufacturing 
purposes are not eligible for the waiver.
Non-RACT Portion of June 12, 2007 and September 14, 2009 Submittals
    A number of NOX regulations were approved into the 
Wisconsin SIP on November 13, 2001 (66 FR 56931). They were approved as 
part of fulfilling the reasonable further progress requirements for the 
Milwaukee-Racine and Sheboygan County 1-hour ozone nonattainment areas. 
Proposed changes to these ``non-RACT'' portions of ch. NR 428 are as 
follows.
    NR 428.02 ``Definitions'' adds the definition of ``process 
heater,'' rule NR 428.02(7e). This addition is acceptable.
    NR 428.04(2)(h)1. and 2., 428.05(3)(e)1. to 4, have been corrected 
to use the units of ``grams per brake horsepower-hour'' from ``grams 
per brake horsepower.'' These corrections are acceptable.
    The revision avoids triggering new source NOX limits 
under ch. NR 428.04 when the modification is made solely to comply with 
existing source NOX control requirements under rules NR 
428.05 or 428.22. This modification does not alter the original 
intended emission limitation of the rule and therefore is acceptable.
    The revisions make a number of clarifications and simplifications 
to the monitoring and reporting requirements under 428.23(1)(b)1., 
428.23(1)(b)9, and 428.24(1)(b)(intro.). These changes are not 
substantive in nature nor do they eliminate dual requirements. 
Therefore these modifications are acceptable.
    The applicability statement in rule NR 428.05(1) is being revised 
to remove the reference to ``modified'' sources. The use of the term 
``modified'' in this case identified a source modified before February 
1, 2001 as an existing source. Some inferred this meant a source 
existing prior to that date but modified afterwards is not subject to 
an emission limit. The applicability language is altered to clearly 
identify units subject to an existing source emission limitation. This 
correction is acceptable.

IV. Proposed Action

    EPA is proposing to approve revisions to the Wisconsin SIP 
submitted on June 12, 2007 and September 14, 2009. These revisions 
incorporate provisions related to the implementation of NOX 
RACT for major sources in the Milwaukee-Racine and Sheboygan ozone 
nonattainment areas. The only rule that EPA is not acting on in the 
Wisconsin submittals is the ``CAIR equals RACT'' provision found in 
428.25(3). This rule is separable from the rest of the NOX 
RACT rules and the rest of the submittal will not be affected if this 
rule is not acted on.
    The SIP revisions that EPA is proposing to approve address the 
requirements found in section 182(f) of the CAA.

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 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 (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 Clean Air Act; 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, Electric 
utilities, Intergovernmental relations, Nitrogen oxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
dioxide.


[[Page 14122]]


    Dated: March 11, 2010.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. 2010-6519 Filed 3-23-10; 8:45 am]
BILLING CODE 6560-50-P
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