[Federal Register Volume 78, Number 94 (Wednesday, May 15, 2013)]
[Proposed Rules]
[Pages 28547-28550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11476]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2008-0402; FRL-9811-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Permit Exemption Rule

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 by the Wisconsin Department of 
Natural Resources (WDNR) on April 23, 2008. WDNR has submitted for 
approval revisions that exempt certain sources of air pollution from 
construction permit requirements. EPA is proposing to approve these 
revisions because they are consistent with Federal regulations 
governing state permit programs.

DATES: Comments must be received on or before June 14, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2008-0402, 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-
2008-0402. 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. What revisions did WDNR submit?
III. Does this submittal comply with Federal regulations?
IV. Do the revisions comply with section 110(l) of the Clean Air 
Act?
V. What action is EPA taking on this submittal?
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. What revisions did WDNR submit?

    Wisconsin submitted revisions to its rules NR 406 (requirements for 
construction permits), NR 407 (requirements for operation permits), and 
NR 410 (requirements for fees) on April 23, 2008. The submittal 
requests that EPA approve the following revisions to WDNR's SIP: (1) 
renumber and create NR 406.02(1) and 406.04(4)(h); (2) create NR 
406.04(1)(zh), NR 406.04(1q), NR 406.04(4)(i), NR 407.03(1m), and NR 
410.03(1)(f); and (3) amend NR 410.03(1)(d).
    In a letter dated March 25, 2013, Wisconsin provided additional 
information as required by section 110(l) of the Clean Air Act (the 
Act) to demonstrate that ``the revision would not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in section 7501 of this title [section

[[Page 28548]]

171]), or any other applicable requirement of this Act.'' In this 
letter WDNR also clarified that the revisions to NR 407.03(1m) are not 
to be approved into its SIP at this time but will be included in a 
future title V approval package request.
    The revisions submitted will exempt sources of air pollution whose 
actual emissions are under 10 tons per year (tpy) of each criteria 
pollutant, particulate matter of 10 micrometers or less 
(PM10), sulfur dioxide (SO2), nitrogen oxides 
(NOX), carbon monoxide (CO) and volatile organic compounds 
(VOC), and less than 0.5 tpy of lead, and that are not subject to 
Federal air pollution requirements for hazardous air pollutants under 
section 111 or 112 of the Act from the requirement to obtain a 
construction permit. The revisions will also exempt construction or 
modification projects that emit less than 1,666 pounds of criteria 
pollutants per month, averaged over a 12 consecutive month period, and 
less than 10 pounds of lead per month, averaged over a 12 consecutive 
month period from construction permitting requirements.
    WDNR submitted the following revisions to NR 406, Wisconsin's 
construction permit provision. NR 406.02(1) is renumbered to NR 
406.02(1m). NR 406.02(1) is created to add a definition for ``clean 
fuel.'' NR 406.04(1)(zh)1. and 406.04(1)(zh)2. are created to provide 
for an exemption from construction permit requirements for sources that 
qualify for the exemption under NR 407.03(1m).
    NR 406.04(1q) is created to exempt sources from construction permit 
requirements if the following criteria are met: (1) The owner or 
operator has a facility-wide operation permit or has submitted an 
application for a facility-wide operation permit; (2) actual emissions 
from the constructed or modified units do not exceed (a) 1,666 pounds 
per month averaged over 12 months for criteria pollutants, and (b) 10 
pounds per month averaged over 12 months for lead; (3) none of the 
constructed or modified units requires a new Best Available Control 
Technology or Lowest Achievable Emission Rate determination under NR 
445 (Wisconsin's hazardous air pollutant rules); (4) none of the 
constructed or modified units are subject to new permitting 
requirements under NR 405 or 408 (Wisconsin's Prevention of Significant 
Deterioration (PSD) and nonattainment New Source Review (NSR) rules) as 
a result of the project; (5) the owner or operator submits an 
application for an operation permit revision, prior to commencing 
construction and (a) proposes monitoring in accordance with the 
monitoring requirements in NR 430.055, and (b) commences such 
monitoring and maintains records to demonstrate compliance with any 
applicable emission limitation; (6) the owner or operator submits a 
claim of exemption from construction permitting requirements; and (7) 
the constructed or modified unit does not trigger an emissions 
limitation or requirement under sections 111 or 112 of the Act.
    NR 406.04(4)(h) is created to exempt changes in the method of 
operation for process lines emitting VOCs from construction permitting 
requirements if: (1) the change does not result in annual potential VOC 
emissions that exceed the currently allowed annual potential VOC 
emissions; and (2) the change does not trigger a requirement under 
sections 111 or 112 of the Act.
    NR 406.04(4)(i) is created to exempt a change to an external 
combustion furnace to allow combustion of a clean fuel from 
construction permitting requirements if the following three criteria 
are met: (1) The external combustion furnace has a maximum heat input 
capacity of 10 million British thermal units per hour (mmBtu/hour) for 
distillate oil and 25 mmBtu/hr for natural gas or propane; (2) the use 
of the new fuel does not cause or exacerbate the exceedance of any 
ambient air quality standard or increment; and (3) the change does not 
trigger a requirement under section 111 or 112 of the Act.
    In the original submission, WDNR requested for provisions in NR 
407, which pertain to operation permit requirements, to be approved 
into the SIP. However, in a letter dated March 25, 2013, WDNR withdrew 
the NR 407 provisions from the SIP submittal.
    NR 410 contains Wisconsin's air permit, emission, and inspection 
fees. WDNR amended NR 410.03(1)(d) to create subparagraph (f), which 
requires a fee for each construction permit exemption claim.
    WDNR held public hearings on June 27, 28 and 29, 2006, for these 
proposed revisions. WDNR proposed the rule revisions to the Wisconsin 
Natural Resources Board for adoption in August 2006, and the Board 
approved the rule revisions, which were published in the Wisconsin 
Register on May 31, 2007, and became effective on June 1, 2007.

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, will exempt 
certain sources of air pollution from construction permit requirements. 
As discussed further below, EPA is proposing to approve these revisions 
because they are consistent with Federal regulations.
    Construction permitting requirements, including emissions 
thresholds for major sources of air pollution, are defined in the 
Federal PSD program (See 40 CFR 51.166). Wisconsin rule NR 405 contains 
its PSD program requirements. Permitting requirements for major sources 
of air pollution in nonattainment areas are defined in the Federal NSR 
program (See 40 CFR 51.165). Wisconsin rule NR 408 contains its 
nonattainment area permitting requirements. WDNR's proposed rule 
changes do not request any revision to NR 405 or NR 408, nor is the 
permit exemption proposed in this SIP submittal allowed if an emission 
unit constructed, modified, replaced, relocated, or reconstructed is 
subject to the requirements of NR 405 or 408, as approved into the SIP 
at 73 FR 76560 (December 17, 2008), as a result of the project. While 
the proposed exemption is based on actual emissions, if the potential 
to emit (PTE) of a project exceeds the significant net emission 
increase threshold under NR 405 or NR 408, the project is not eligible 
for the exemption under NR 406.04(1q)(d). This requirement is included 
in NR 406.04(1q)(d), which states that NR 406.04(1q) does not provide 
an exemption from construction permit requirements for a source that is 
required to obtain a permit under NR 405 or 408.
    Facilities and projects that are non-major are governed by the 
minor NSR permitting program. The Federal requirements for minor source 
programs are outlined 40 CFR 51.160 through 51.164. In general, the 
purpose of a permitting authority's minor source program is to attain 
and maintain the National Ambient Air Quality Standards (NAAQS). The 
minor NSR program requirements, which are set forth in 40 CFR 51.160, 
require a state or permitting authority to have a program: (1) to 
determine ``whether construction or modification'' of a source will 
interfere with the SIP or attainment or maintenance of the NAAQS; and, 
(2) to include procedures to ``prevent the construction or 
modification'' of the source if it would interfere with the SIP or 
attainment or maintenance of the NAAQS. While the PSD program provides 
certain emissions thresholds for permitting, the minor NSR program

[[Page 28549]]

does not set forth any such permit applicability thresholds.
    Wisconsin's current rules at NR 406 contain two types of exemptions 
from construction and operation permit requirements. The first type are 
exemptions which apply to a specific list of processes, emission units, 
or activities that are excluded from the minor NSR permitting program, 
and the second type are general exemptions based on emissions 
applicability thresholds. The exemptions proposed in this SIP revision 
are emissions applicability thresholds based exemptions and are similar 
to the general emissions based exemptions in WDNR's existing SIP 
approved rules.
    The August 21, 2006, (71 FR 48696) proposed ``Review of New Sources 
and Modifications in Indian Country'' (Tribal Minor NSR Rule), 
discusses minor NSR permit thresholds. It states, ``The Federal 
regulations for minor source programs are considerably less detailed 
than the requirements for major sources. As a result, there is a wider 
variety of programs and requirements for these ``non-major'' 
preconstruction activities and there is a great deal of variation among 
State minor NSR permitting programs.'' (71 FR 48700).
    This rule also states that, `` . . . a number of State programs 
have established cutoff levels or minor NSR thresholds, below which 
sources are exempt from their minor NSR rules.'' (71 FR 48701). The 
rule further provides, `` . . . there is variation in State approaches 
to minor NSR applicability. Some States do not prescribe source 
applicability thresholds, instead providing a list of emission units 
and activities that are excluded from minor NSR. Many of the States 
that do have applicability thresholds also provide a list of excluded 
emission units and activities.'' (71 FR 48701).
    In the rule, EPA proposes 10 tpy as the minor NSR permitting 
threshold for CO, NOX, SO2, and PM in attainment 
areas. The rule states that ``We consider the proposed thresholds to be 
representative of such thresholds in State minor NSR programs, and we 
believe that these limits will be appropriate for use in Indian 
country.'' (71 FR 48702). In addition, the rule provides, ``Section 
110(a)(2)(C) of the Act requires minor NSR programs to assure that the 
NAAQS are attained and maintained. Applicability thresholds are proper 
in this context provided that the sources and modifications with 
emissions below the thresholds are inconsequential to attainment and 
maintenance of the NAAQS. As discussed further, the minor NSR 
thresholds that we are proposing today meet this criterion.'' (71 FR 
48701).
    WDNR's proposal for a 10 tpy permitting exemption is consistent 
with EPA's Federal minor NSR program requirements. As discussed in more 
detail below, in accordance with minor NSR program requirements, WDNR 
will have enforceable procedures to prevent construction or 
modification of a source if it would violate any SIP requirement or 
interfere with attainment or maintenance of the NAAQS.
    WDNR's regulations require that an air dispersion modeling analysis 
be performed when any construction permit is issued, as well as for the 
issuance of certain operation permits. The modeling analysis accounts 
for emissions from the facility, as well as background concentrations 
and contributions from surrounding sources, to determine whether any 
NAAQs are exceeded. If a project is exempt from construction permitting 
requirements, WDNR still requires that any source that has an increase 
in emissions of a pollutant go through dispersion modeling during the 
operation permit issuance process. (A modeling analysis is also 
required during the operation permit review if any modeling parameter 
has been negatively changed such that there could be an increase.) 
Therefore, if any exceedance of the NAAQS resulted from the exempt 
installation or modification of any source, it would be detected during 
the operation permit review process. In addition, the emissions from 
any source or project qualifying for these proposed permit exemptions 
are still accounted for in the ambient concentration when modeling 
analyses are performed for other permits.
    Even if a source qualifies for an exemption from construction 
permit requirements, nothing in the proposed revisions relieves any 
source from the requirement to submit its yearly emissions for 
inclusion in the emissions inventory if it is required to do so. The 
Air Emissions Management System requires the owner or operator of a 
source to calculate actual annual emissions for reporting to the 
inventory. The data in the emissions inventory can also be used to 
verify that any exemption based on the proposed 10 tpy exemption is 
being met. In addition, the proposed SIP revision contains criteria 
which must be met by applicants in order to qualify for the proposed 
exemptions.
    NR 406.04(1q)(6) requires the facility to submit a claim for the 
exemption to WDNR. WDNR is also required to respond to the construction 
permit exemption claim submitted.
    NR 406.04(1q)(1) and (5) for construction or modification projects 
requires the source to have an operation permit or have submitted an 
operation permit application, as well as having submitted an 
application for the operation permit revision to permit the change.
    Furthermore, the proposed exemption from construction permitting 
does not exempt the source from control technology reviews. In the 
supplement to its original submittal dated March 25, 2013, WDNR states 
that ``Control technology reviews will be conducted during the 
operation permit initial issuance, renewal or revision process as 
appropriate''.
    The proposed exemptions under NR 406(1q) and NR 406.04(4)(h) and 
(i) are not allowed if a requirement under sections 111 or 112 of the 
Act is triggered. Section 111 contains the New Source Performance 
Standards, and section 112 contains the National Emissions Standards 
for Hazardous Air Pollutants.
    In addition, Wisconsin Stat. 285.63 contains the criteria for 
permit approval, and requires that the source will meet all applicable 
emission limitations, the source will not violate or exacerbate 
violation of air quality standard or ambient air increment, and the 
source will not preclude construction or operation of another source. 
If emissions will exceed the 10 tpy threshold, the facility is required 
to obtain a construction permit prior to operation above the threshold. 
Failure to do so is a violation and will result in an appropriate 
enforcement action.
    EPA has determined that WDNR's submitted revisions will comply with 
Federal permitting program requirements, based on WDNR's proposed 
emissions thresholds for the exemption, the criteria required for the 
exemption, the modeling requirements in WDNR's permitting programs, 
EPA's approval of similar rules, and the requirements of the minor 
source program.

IV. Do the revisions comply with section 110(l) of the Clean Air Act?

    Section 110(l) of the Act states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of a NAAQS or any other applicable requirement of 
the Act. The revisions to Wisconsin's SIP to exempt certain sources of 
air pollution from construction permit requirements will not interfere 
with attainment,

[[Page 28550]]

reasonable further progress, or any other applicable requirement of the 
Act.
    As described in section III above, EPA believes that the proposed 
revisions to Wisconsin's SIP meet Federal requirements and will not 
interfere with attainment or reasonable further progress. Sources 
exempt from obtaining a construction permit will continue to be subject 
to all applicable requirements and compliance demonstration methods per 
Wisconsin's air pollution regulations. Sources that receive a permit 
exemption will still be required to undergo a control technology review 
during operation permit initial issuance, renewal, or revision as 
appropriate. All sources will be required to conduct monitoring and 
maintain records sufficient to demonstrate compliance with Wisconsin's 
regulatory requirements. Additionally, any source required to submit an 
air emission inventory report of annual actual emissions above 
thresholds in NR 438, will still be required to submit this report. 
Furthermore, since an exemption from the requirement to obtain a 
construction permit does not exempt the facility from meeting the air 
quality standards and increments, all exempt sources will be included 
in any analysis of increment consumption at nearby facilities as 
required in NR 406.07.

V. What action is EPA taking on this submittal?

    EPA is proposing to approve revisions to Wisconsin rules NR 406 and 
410, submitted by the State on April 23, 2008. The SIP revisions 
submitted, described in section II, above, are consistent with Federal 
regulations governing state permitting programs. See section III, 
above. EPA is also soliciting comment on this proposed approval.

VI. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act 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 Act. 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 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 25, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013-11476 Filed 5-14-13; 8:45 am]
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