[Federal Register Volume 83, Number 102 (Friday, May 25, 2018)]
[Proposed Rules]
[Pages 24258-24259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11197]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2017-0701; FRL-9978-65--Region 5]


Air Plan Approval; Wisconsin; Modification of Greenhouse Gases 
Language

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the Wisconsin State Implementation Plan (SIP) 
submitted by the Wisconsin Department of Natural Resources (WDNR) to 
EPA on November 28, 2017. In this revision, WDNR makes modifications to 
the language associated with how greenhouse gases are evaluated in the 
Prevention of Significant Deterioration (PSD) program. These revisions 
were made to reflect changes required by the United States Supreme 
Court in its June 23, 2014 decision, Utility Air Regulatory Group 
(UARG) v. EPA), 134 S. Ct. 2427.

DATES: Comments must be received on or before June 25, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2017-0701 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the For Further Information Contact section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Radhica Kanniganti, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-8097, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Review of State Submittals
II. What action is EPA taking?
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. Review of State Submittals

    This proposed rulemaking addresses the November 28, 2017, WDNR 
submittal for SIP revision, revising the rules in the Wisconsin SIP to 
reflect the changes required by UARG v. EPA, 134 S. Ct. 2427, on how 
greenhouse gases are evaluated in the PSD program. The Clean Air Act's 
(CAA) PSD provisions make it unlawful to construct or modify a ``major 
emitting facility'', in any area to which the PSD program applies, 
without a permit, 42 U.S.C. 7475(a). A ``major emitting facility'' is a 
stationary source with the potential to emit 250 tons per year of ``any 
air pollutant'' (or 100 tons per year for certain types of sources). 42 
U.S.C. 7479(1).
    In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court 
held that greenhouse gases, including carbon dioxide, fit within the 
definition of air pollutant in the CAA. In 2010 and 2011, EPA 
promulgated a series of greenhouse gas emission standards for new motor 
vehicles, and made stationary sources subject to the PSD and title V 
permit programs based on their potential to emit greenhouse gases. 
Recognizing, however, that requiring all sources with greenhouse gas 
emissions above the statutory thresholds would expand these permit 
programs and make them unadministrable, EPA ``tailored'' the programs 
by adopting a ``phase-in'' approach. The Tailoring Rule (75 FR 31514), 
published on June 3, 2010, phased in permitting requirements for 
greenhouse gas emissions. Step 1 of this rule applied to sources that 
were subject to the PSD and title V programs before greenhouse gases 
were regulated under the CAA. In Step 1, from January 2 through June 
30, 2011, no source would become newly subject to the PSD or title V 
program solely based on its greenhouse gas emissions; however, sources 
that were subject to PSD review anyway due to their non-greenhouse gas 
regulated pollutants would need to

[[Page 24259]]

comply with the Best Available Control Technology (BACT) emission 
standards for greenhouse gases if they emitted these gases in 
significant amounts, defined as at least 75,000 tons per year of carbon 
dioxide equivalent (CO2e). During Step 2, from July 1, 2011, through 
June 30, 2012, sources with the potential to emit at least 100,000 tons 
per year of CO2e would be subject to PSD and Title V permitting for 
their construction and operation and to PSD permitting for 
modifications that would increase their greenhouse-gas emissions by at 
least 75,000 tons per year. EPA codified Steps 1 and 2 at 40 CFR 
51.166(b)(48) and 40 CFR 52.21(b)(49) for the purpose of PSD 
applicability and at 40 CFR 70.2 and 40 CFR 71.2 for title V, in the 
definition of ``subject to regulation''.
    This action was challenged by numerous parties, including several 
states. On June 23, 2014, in UARG v. EPA, the Supreme Court ruled that 
the CAA neither compels nor permits EPA to adopt an interpretation of 
the CAA requiring a source to obtain a PSD or title V permit solely 
based on its potential greenhouse gas emissions. The ruling, however, 
supported EPA's decision to require sources otherwise subject to PSD 
review to comply with BACT emission standards for greenhouse gases. In 
other words, with respect to PSD, the ruling upheld PSD permitting 
requirements for greenhouse gases under Step 1 of the Tailoring rule 
for ``anyway'' sources, and invalidated PSD permitting requirement for 
Step 2 sources.
    In a subsequent rulemaking, on August 19, 2015 (80 FR 50199), EPA 
removed from the CFR several provisions of the PSD and title V 
permitting regulations that were originally promulgated as part of the 
Tailoring Rule. Specifically, the provisions that were removed included 
regulations under review that required sources to obtain a permit based 
only upon their potential greenhouse gas emissions (40 CFR 
51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v)), and regulations under 
review that required EPA to consider further phasing-in the greenhouse 
gas permitting requirements at lower greenhouse gas emission 
thresholds. 40 CFR 52.22, 40 CFR 70.12, and 40 CFR 71.13.
    The WDNR is modifying its PSD rules in NR 405.07(9) to establish 
the conditions under which greenhouse gases at a stationary source 
shall be subject to the PSD regulations. Following the UARG v. EPA 
decision on how greenhouse gas emissions are evaluated, WDNR's 
modification clarifies that only Step 1 sources will be subject to PSD 
permitting.

IV. What action is EPA taking?

    EPA is proposing to approve WDNR's submittal for revision of the 
SIP to incorporate the holding in UARG v. EPA decision regarding when 
greenhouse gas emissions must be controlled. EPA has reviewed 
Wisconsin's November 28, 2017, submittal to approve Wisconsin 
Administrative Code provision NR 405.07(9) into Wisconsin's SIP, and 
has found it to be consistent with the June 23, 2014, UARG v. EPA 
ruling.

V. Incorporation by Reference

    In this rule, EPA is proposing to include 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 Administrative Code provision NR 405.07(9) as 
published in the Register, July 2015, No. 715, effective August 1, 
2015. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov, and at the EPA Region 
5 Office (please contact the person identified in the For Further 
Information Contact section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: May 16, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-11197 Filed 5-24-18; 8:45 am]
 BILLING CODE 6560-50-P


