[Federal Register Volume 77, Number 243 (Tuesday, December 18, 2012)]
[Proposed Rules]
[Pages 74817-74820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30449]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0502; FRL-9763-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Disapproval of PM2.5 Permitting Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a revision to Wisconsin's State 
Implementation Plan (SIP) submitted by the Wisconsin Department of 
Natural Resources (WDNR) in a letter dated May 12, 2011. The revision 
concerns permitting requirements relating to particulate matter of less 
than 2.5 micrometers (PM2.5). EPA is proposing to disapprove 
the revisions because they do not meet the 2008 PM2.5 SIP 
requirements.

DATES: Comments must be received on or before January 17, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0502, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (312) 385-5501.
    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 No. EPA-R05-OAR-
2011-0502. 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 Andrea Morgan, Environmental Engineer, 
at (312) 353-6058 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andrea Morgan, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-6058, [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. What should I consider as I prepare my comments for EPA?
II. The State's Submittal
III. Does this submittal comply with Federal regulations?
IV. What action is EPA taking on this submittal?
V. 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. The State's Submittal

    In May 2008, EPA finalized regulations to implement the New Source 
Review (NSR) Implementation Rule for PM2.5 to include the 
major source threshold, significant emissions rate and offset ratios 
for PM2.5, interpollutant trading for offsets and 
applicability of NSR to PM2.5 precursors. On October 20, 
2010, EPA amended the requirements for PM2.5 under the 
Prevention of Significant Deterioration (PSD) program by adding maximum 
allowable increase in ambient pollutant concentrations and screening 
tools known as the Significant Impact Levels and Significant Monitoring 
Concentration (SMC) for PM2.5.
    On May 12, 2011, Wisconsin requested a revision to its SIP to 
include

[[Page 74818]]

new permit requirements relating to PM2.5. The provisions 
were designed to match the requirements set forth in the May 2008 and 
October 2010 rules. Wisconsin submitted revisions to its rules NR 400, 
404, 405, 406, 407, 408, and 484 of the Wisconsin Administrative Code. 
The submittal requests that EPA approve the following revisions to 
Wisconsin's SIP: (1) Amend NR 400.02(40), (70), and (79); (2) create NR 
400.02(123m); (3) amend NR 400.02(135); (4) create NR 400.03(4)(ki); 
(5) renumber and amend NR 404.02(4e) and (4m); (6) amend NR 
405.02(25k)(intro.); (7) create NR 405.02(27)(a)5m in Table A; (8) 
amend NR 405.07(8)(a)3m; (9) amend NR 406.04(1)(n)(intro) and 1. and 2. 
(intro); (10) create NR 406.04(2)(cs); (11) create NR 407.03(2)(be); 
(12) create NR 408.02(32)(a)5m; (13) create NR 408.06(1)(cm); (14) 
amend NR 484.03(5) in Table 1; (15) and amend NR 484.04(5) and (6g) in 
Table 2.
    The submittal included permanent rules to define major source 
thresholds and significant emission increase levels; establish the SMC 
for PM2.5; establish interpollutant trading ratios for 
PM2.5, sulfur dioxide (SO2) and nitrogen oxides 
(NOX); and clarify existing nonattainment area permitting 
rules. EPA announced through a memorandum, on July 21, 2011, a change 
in its policy concerning the development and adoption of interpollutant 
trading provisions for PM2.5. The new policy requires that 
any ratio involving PM2.5 precursors submitted to EPA for 
approval for use in a state's interpollutant offset program for 
PM2.5 nonattainment areas must be accompanied by a technical 
demonstration that shows the net air quality benefits of such a ratio 
for the PM2.5 nonattainment area in which it will be 
applied. In a letter dated March 5, 2012, WDNR requested to withdraw 
its request to have NR 408.06(1)(cm), the provision pertaining to 
interpollutant trading ratios, included in its 2011 submittal.
    NR 400 contains Wisconsin's air pollution control definitions and 
the following revisions to NR 400 were submitted. NR 400.01(40), (70), 
and (79) and NR 400.02(135) were revised to clarify existing rules by 
updating references within the rule. These amendments do not change the 
effect or intent of these rules. NR 400.02(123m) created a definition 
of ``PM2.5 emissions''. NR 400.03(4)(ki) created a 
definition for ``PM2.5''.
    NR 404 contains Wisconsin's Ambient Air Quality requirements, and 
the following revision to NR 404 was submitted. NR 404.02 (4e) and (4m) 
were renumbered to NR 400.02(123e) and (123s) and were revised to 
clarify the definitions of ``PM2.5'' and ``particulate 
matter of less than 10 micrometers'' (PM10).
    NR 405 contains Wisconsin's PSD program requirements, and the 
following revisions to NR 405 were submitted. NR 405.02(25k) (intro) 
was amended to clarify language. NR 405.02(27)(a)5m in Table A was 
created to include the 10 tons per year (tpy) significance thresholds 
for PM2.5, and 40 tpy threshold for NOX and 
SO2, the precursors to PM2.5. The inclusion of 
these significance values would cause sources for which annual 
emissions exceed the significance value to trigger the PSD program 
requirements. NR 405.07(8)(a)3m was created to exempt major sources 
from the monitoring requirements for PM2.5 of NR 405.11 if 
one of the following criteria are met: (a) The emissions increase of 
PM2.5 from a new stationary source or the net emissions 
increase of the PM2.5 from a major modification would cause, 
in any area, air quality impacts less than 2.3 mg/m\3\, 24 hour 
average; (b) The concentration of PM2.5 in the area that the 
source or modification would affect is less than 2.3 mg/m\3\.
    NR 406 contains Wisconsin's construction permitting requirements, 
and the following revisions to NR 406 were submitted. NR 406(1)(n), NR 
406(1)(n)1 and NR 406(1)(n)2 were amended to clarify otherwise 
unaffected existing rules. These changes do not change the effect or 
intent of the rule. NR 406.04(2)(cs) was created to exempt sources with 
a maximum theoretical emission for PM2.5 of less than 2.2 
pounds per hour from obtaining a construction permit.
    NR 407 contains Wisconsin's operation permit requirements, and WDNR 
submitted NR 407.03(2)(be) to require any source with a maximum 
theoretical emissions of PM2.5 greater than 2.2 pounds per 
hour to obtain an operation permit.
    NR section 408 contains Wisconsin's requirements for construction 
permits in nonattainment areas and WDNR included NR 408.02(32)(a)5m in 
its submission. NR 408.02(32)(a)5m defined ``Significant'', in 
reference to a net emissions increase or the potential of a source to 
emit any of PM2.5, as a rate of emissions that would equal 
or exceed 10 tpy of PM2.5 emissions or 40 tpy of 
NOX or SO2. While the original submittal 
requested to create NR 408.06(1)(cm), Wisconsin withdrew the request to 
include this provision from the SIP approval in a letter dated March 5, 
2012.
    NR 484 contains those parts of Wisconsin's regulations that are 
incorporated by reference from the regulations. Wisconsin submitted a 
request to amend NR 484.03(5) in Table 1 and NR 484.04(5) and (6g) in 
Table 2. The updates would correct citations in the Wisconsin SIP so 
that they are up to date with Wisconsin's current regulations.

III. Does This Submittal Comply With Federal Regulations?

    EPA has evaluated WDNR's proposed revisions to the Wisconsin SIP in 
accordance with the Federal requirements governing state permitting 
programs. The revisions described in Section II above are intended to 
update the Wisconsin SIP to comply with current rules. As discussed 
below, EPA is proposing to disapprove these revisions because they do 
not meet all the requirements of the 2008 rules.
    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that states had to account for 
PM2.5 and PM10 condensables beginning on or after 
January 1, 2011. This requirement is codified in 40 CFR 
51.166(b)(49)(vi) and 40 CFR 52.21(b)(50)(vi). Revisions to states' PSD 
programs incorporating the inclusion of condensables were required to 
be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).
    WDNR's revision to NR 400.03(4)(ki) provides the definition of 
``PM2.5'' as particulate matter with an aerodynamic diameter 
<= 2.5[micro]m'' and NR 400.02(123e) defines ``PM2.5'' as 
``particulate matter with an aerodynamic diameter less than or equal to 
a nominal 2.5 micrometers as measured in the ambient air by a reference 
method based on appendix L of 40 CFR part 50, incorporated by reference 
in NR 484.04(6g), and designated in accordance with 40 CFR part 53, 
incorporated by reference in NR 484.03(5), or by an equivalent 
method.'' Similarly, the requested revisions do not include the 
explicit language identifying PM10 and PM2.5 
condensables. EPA recognizes that Wisconsin Administrative Code NR 439 
contains the requirements for reporting, recordkeeping, testing, 
inspection, and determination of compliance for air contaminant sources 
and their owners and operators. Of note, NR 439.02(4) defines 
``condensable particulate matter'' as ``any material, except uncombined 
water, that may not be collected in the front half of the particulate 
emission sampling train but which exists as a solid or liquid at

[[Page 74819]]

standard conditions.'' While this definition is SIP approved, it was 
only approved as it applies to Wisconsin Administrative Code NR 419 to 
NR 425. Wisconsin's permitting requirements are codified in NR 405 to 
408. Further, EPA regulations require that permitting requirements 
contain the explicit language that, ``Particulate matter (PM) 
emissions, PM2.5 emissions, and PM10 emissions 
shall include gaseous emissions from a source or activity which 
condense to form particulate matter at ambient temperatures.'' 
Wisconsin's current SIP does not contain the explicit language to 
account for PM2.5 and PM10 condensables in 
permitting decisions, as codified in 51.166(b)(49)(vi) and 40 CFR 
52.21(b)(50)(vi), and to date, the State has not made a submission with 
such revisions.
    WDNR's revisions to NR 405.02(27)(a)(5) include the significant 
emissions rates for direct PM2.5, and SO2 and 
NOX as PM2.5 precursors, consistent with the 2008 
NSR Rule. However, Wisconsin's PSD regulations include only generic 
language to define what constitutes a regulated NSR pollutant that does 
not directly account for PM2.5 and its precursors. NR 
405(02)(25i) defines ``Regulated NSR air contaminant'' as ``Any air 
contaminant for which a national ambient air quality standard has been 
promulgated and any constituents or precursors for the air contaminants 
identified by the administrator * * * ''. The 2008 NSR Rule obligates 
the State to explicitly identify the precursors to PM2.5 as 
part of the definition for ``Regulated NSR air contaminant.'' EPA 
concludes that although Wisconsin has incorporated the significant 
emissions rates in accordance with the 2008 NSR Rule, WDNR has not 
explicitly identified SO2 and NOX as precursors 
to PM2.5 in defining pollutants regulated by the PSD 
program.
    Since the proposed revision to Wisconsin's SIP does not include the 
prescribed language required for the identification of precursors and 
does not account for PM2.5 or PM10 condensables, 
EPA proposes to disapprove the submitted revisions. EPA's proposed 
action is consistent with the narrow disapproval of the infrastructure 
requirements published on October 29, 2012 (77 FR 65478). The 
infrastructure SIP was disapproved in part because of the deficiencies 
with regards to the identification of precursors to PM2.5 
and PM2.5 and PM10 condensables.

IV. What action Is EPA taking on this Submittal?

    EPA is proposing to disapprove the revisions to Wisconsin rules NR 
400, 404, 405, 406, 407, 408 and 484, submitted by the State on May 12, 
2011, for approval into the SIP. The rule revisions submitted, 
described in Section II, above, are not consistent with Federal 
regulations governing state permitting programs. See Section III, 
above. EPA is also soliciting comment on this proposed disapproval.
    Under section 179(a) of the Clean Air Act (CAA), final disapproval 
of a submission that addresses a requirement of a part D plan (section 
171-193 of the CAA), or is required in response to a finding of 
substantial inadequacy as described in section 110(k)(5), starts a 
sanction clock. The submission EPA is proposing to disapprove was not 
submitted to meet either of these requirements. Therefore if EPA takes 
final action to disapprove these submissions, no sanctions under 179 
will be triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a Federal 
Implementation Plan (FIP) no later than two years from the date of the 
disapproval unless the state corrects the deficiency, and the 
Administrator approves the plan or plan revision before the 
Administrator promulgates such FIP. However, since elements of this SIP 
revision were narrowly disapproved under the infrastructure SIP, the 
two year timeframe began with the final narrow disapproval of 
Wisconsin's Infrastructure SIP (October 29, 2012; 77 FR 65478). EPA 
will actively work with Wisconsin to incorporate changes to its PSD 
program that explicitly identify PM2.5 precursors and 
account for PM2.5 and PM10 condensables in 
permitting emissions limits, consistent with the 2008 NSR Rule. In the 
interim, EPA expects WDNR to adhere to the associated requirements of 
the 2008 NSR Rule in its PSD program, specifically with respect to the 
explicit identification of PM2.5 precursors, and accounting 
for PM2.5 and PM10 condensables in permitting 
emissions limits.

V. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely disapproves state law as not meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

Unfunded Mandates Reform Act

    Because this rule disapproves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it 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).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely disapproves a state rule, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (59 
FR 22951, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it disapproves a state rule.

[[Page 74820]]

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: December 10, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-30449 Filed 12-17-12; 8:45 am]
BILLING CODE 6560-50-P