[Federal Register Volume 59, Number 2 (Tuesday, January 4, 1994)]
[Proposed Rules]
[Pages 278-280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-75]


[[Page Unknown]]

[Federal Register: January 4, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[W12-2-5550; FRL-4821-2]

 

Approval and Promulgation of Implementation Plans; Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Notice of proposed rule.

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SUMMARY: USEPA is proposing to disapprove the State of Wisconsin's 
Prevention of Significant Deterioration (PSD) Rules, Natural Resources 
(NR) 405.01 through 405.17, as a revision to the Wisconsin State 
Implementation Plan (SIP). The State developed the rules as Wisconsin's 
plan to prevent significant deterioration of air quality in areas 
designated as unclassifiable or attainment of the National Ambient Air 
Quality Standards (NAAQS) and to satisfy the requirements of part C of 
the Clean Air Act (Act). USEPA proposes to disapprove these rules 
because they do not meet USEPA's regulation governing State PSD 
programs (40 CFR 51.166). Until USEPA approves a SIP submission from 
Wisconsin satisfying these requirements, the Federal PSD requirements 
at 40 CFR 52.21 remain applicable within the State of Wisconsin.

DATES: Comments on this revision and on the proposed USEPA action must 
be received by March 7, 1994.

ADDRESSES: Written comments should be sent to: Carlton Nash, Chief, 
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. Please submit an original and five 
(5) copies, if possible.
    Copies of the SIP revision request and USEPA's analysis are 
available at the following address for review: U.S. Environmental 
Protection Agency, Region 5, Air Toxics and Radiation Branch (AT-18J), 
77 West Jackson Boulevard, Chicago, Illinois 60604. It is recommended 
that you telephone Constantine Blathras at (312) 886-0671, before 
visiting the Region 5 Office.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Grants 
Management and Program Evaluation Section, Air Toxics and Radiation 
Branch (AT-18J), U.S. Environmental Protection Agency, Region 5, 
Chicago, Illinois 60604, (312) 886-0671.

SUPPLEMENTARY INFORMATION:

I. Background

    The 1977 Amendments to the Clean Air Act added part C to title I, 
which required implementation of a PSD program. On June 19, 1978 USEPA 
promulgated a PSD program to meet the requirements of part C. It 
promulgated 40 CFR 51.24 (now 40 CFR 51.166), which listed the 
requirements a State must meet in order to have a State PSD program 
approved as a part of its SIP. It promulgated 40 CFR 52.21, which 
contains the procedures and requirements which USEPA follows when it 
carries out the mandates of part C itself. These Sec. 52.21 
requirements were then promulgated into those State SIPs where a State 
did not have an approvable plan in place. Section 52.21 provides that 
its requirements and authorities, or parts thereof, can be delegated to 
the State and local air programs if USEPA determines they have the 
ability and authority to carry out its mandates.
     On June 19, 1978 (43 FR 26410), USEPA promulgated the Federal PSD 
program, 40 CFR 52.21(b) through (v), into the Wisconsin SIP at 40 CFR 
52.2581 because Wisconsin had not submitted an approvable PSD program. 
On August 19, 1980 USEPA gave Wisconsin partial delegation to run the 
Federal PSD Program and on November 13, 1987 gave Wisconsin full 
delegation of the program.
    Seeking a SIP approval of the State's PSD Program, the Wisconsin 
Department of Natural Resources (WDNR) submitted its PSD rules, NR 
405.01 through NR 405.17, to USEPA as a revision to its SIP on March 
16, 1987. A further revision to these rules, which addresses oxides of 
nitrogen (NOx), was submitted on November 24, 1992.
    Wisconsin NR 405 deals exclusively with PSD permitting 
requirements.\1\ USEPA evaluated NR 405 by comparing each section of 
the rule to the appropriate paragraph of 40 CFR 51.166 (formerly 40 CFR 
51.24). Although Wisconsin's PSD rules essentially incorporated the 
Federal PSD provisions in 40 CFR 51.166, USEPA's evaluation revealed 
deficiencies relative to references to New Source Performance Standards 
(NSPS), National Emissions Standards for Hazardous Air Pollutants 
(NESHAP), federally issued PSD permits, source-specific allowable 
emissions, and modeling guidelines.
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    \1\Chapter NR 405 applies the PSD regulation within the total 
area of the State of Wisconsin. Court decisions have determined that 
State governments do not have jurisdiction over most Indian lands. 
This in itself does not affect USEPA's proposal to disapprove the 
rule, but would have to be addressed by Wisconsin if it submitted a 
revised rule.
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II. USEPA's Evaluation of the Proposed Revision

A. NSPS and NESHAP

    The Federal PSD definitions at 40 CFR 51.166 pertaining to: (1) 
``Best Available Control Technology'' (BACT), (2) ``Allowable 
emissions'', (3) ``Federally enforceable'', and (4) the control 
technology review requirements make reference to applicable standards 
and standards of performance under 40 CFR part 60 (NSPS) and 40 CFR 
part 61 (NESHAP), respectively. In the comparable provisions of the 
State rule, the State refers to other NR 400 series chapters, i.e., NR 
440, 445 to 499, and 400 to 499 of the State code. Although the State 
may have intended that these chapters approximate the requirements of 
40 CFR parts 60 and 61, Wisconsin's NSPS and NESHAP regulations are not 
federally enforceable and may, in certain circumstances, differ 
significantly from the parts 60 and 61 requirements in the Federal PSD 
requirements. The references to parts 60 and 61 in the Federal PSD 
requirements for BACT and control technology review 
(Secs. 51.166(b)(12) and 51.166(j)(1), respectively) set minimum 
emissions requirements. Because the State can set less stringent NSPS 
and NESHAP emission limits than the Federal standards, or not set any 
limits at all, the State PSD provisions which are dependent upon the 
requirements of Chapter 440 and Chapters 445 to 449 are not approvable.

B. Stack Height

    The provisions in 40 CFR part 51, subpart I--``Revision of New 
Sources and Modifications'' set forth both general and specific 
requirements for permitting PSD sources, including definitions. In 
order for the State to implement the stack height provision in 
accordance with 40 CFR 51.164 and 51.166(h), it must have definitions 
of such terms as ``stack'', ``dispersion technique'', and ``good 
engineering practice''. On November 6, 1985, the State submitted a 
letter stating that permits issued for new or modified sources will 
conform with the requirements with the Stack Height Regulation, as set 
forth in the Federal Register on July 8, 1985, until such time that the 
State promulgates its own rule. As submitted, this provision meets the 
stack height requirements of the PSD program, and USEPA approved 
Wisconsin's commitment on August 4, 1989 (54 FR 32074), as a portion of 
Wisconsin's stack height plan.

C. Federally Issued PSD Permits

    In the State's definition of ``major modifications'', NR 
405.02(21)(b)(6), the rule exempts an increase in hours of operation or 
in production rates from review unless such increases are prohibited by 
permits issued after January 6, 1975, under NR 405. This rule is 
deficient for not requiring review of sources with such increases if 
the increases were prohibited by previously issued Federal permits or 
during the period when EPA issued the permits prior to the delegation 
of the program's authority. The State rule only exempts from the 
exclusion those permits with conditions ``pursuant to this chapter'', 
which is in the Wisconsin rule. There is no requirement for review of 
modifications to federally issued permits with exemptions pursuant to 
40 CFR 52.21. As submitted, this provision is not approvable as a PSD 
rule.

D. Source-Specific Allowable Emissions

    NR 405.02(1) contains the term ``source-specific allowable 
emissions''. The meaning of the term is unclear. The Federal rule 
depends upon the preamble language published in the Federal Register on 
August 7, 1980 (Vol. 45, No. 154), to qualify the term to exclude cases 
where data on actual emissions are available. The language in NR 
405.02(1) would have to be clarified so that the State term has the 
same meaning as the Federal term. This provision is not approvable in 
its present form.

E. PSD Increments

    The State PSD increments for sulfur dioxide and particulate matter 
are found in Chapter NR 404.05. The increments were not included in 
Wisconsin's March 16, 1987 PSD SIP submittal, but were included in its 
November 24, 1992 submittal.

F. Modeling Guidelines

    The modeling guidelines referenced in NR 405.10 are now outmoded, 
although they were current at the time of submittal. To make NR 405.10 
approvable, it would either have to reference the most recent 
guidelines (See 40 CFR 165(l)) or state that the applicant must use 
USEPA's most current applicable guideline models. Although the modeling 
guidelines were current at the time of submittal, this deficiency would 
need to be addressed if Wisconsin were to resubmit the rule as a SIP 
revision.

G. Nitrogen Dioxide (NO2) Increments

    On October 17, 1988 (53 FR 40656), USEPA promulgated PSD air 
quality increments for NO2. The States were required to submit to 
USEPA by July 17, 1990, plan revisions to protect the NO2 
increments. Wisconsin submitted such increments to USEPA on November 
24, 1992. This submittal meets the NOX increment requirements and 
is approvable.

H. Particulate Matter (PM) Significant Level

    On July 1, 1987 (52 FR 24713), USEPA promulgated the significant 
level for PM at 15 tons per year. Wisconsin submitted two PM SIP 
revisions on March 13, 1989 and May 10, 1990 to meet the Federal PM 
requirements. These submittals were proposed for approval on March 13, 
1989 (NR 400.02, 404.02, 405.02, 406.04, 484.03) which contain the PM 
significant level, and May 10, 1990 (NR 404.04, 484.03). USEPA then 
proposed to disapprove the package on December 23, 1992. After 
receiving comments from the State, USEPA moved to approve the package. 
The final rulemaking approving these rules was published on June 28, 
1993 (58 FR 34528).

Proposed Action

    Because of the deficiencies noted above, USEPA is proposing to 
disapprove Wisconsin's Prevention of Significant Deterioration Permit 
Program as not meeting the requirements of part C of the Clean Air Act.
    The Agency reviewed this PSD SIP revision request for conformance 
with the provisions of the 1990 Amendments enacted on November 15, 
1990. The Agency has determined that this action did not conform with 
the statute before it was amended, that the Amendments did not in any 
way affect this determination, and that the revision does not conform 
to the Act, as amended. If resubmitted, Wisconsin's PSD SIP submission 
should include all requirements and changes added by the 1990 
Amendments. Thus, USEPA is proposing that the revision be disapproved.
    Pursuant to the provisions of 5 U.S.C., section 605(b), I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities (see 46 FR 8709). If USEPA were to 
disapprove this rule, its disapproval would not have a significant 
economic impact on a substantial number of small entities because 
USEPA's PSD program remains in effect under delegated authority. 
Sources would remain subject to the same requirements.
    Under Executive Order 12291, this action is not ``Major''. It has 
been submitted to the Office of Management and Budget (OMB) for review.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Sulfur oxides.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: November 15, 1993.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-75 Filed 1-3-94; 8:45 am]
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