[Federal Register Volume 86, Number 231 (Monday, December 6, 2021)]
[Proposed Rules]
[Pages 68954-68957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26148]



40 CFR Part 52

[EPA-R05-OAR-2020-0504; FRL-9202-01-R5]

Air Plan Approval; Wisconsin; Permit Streamline Updates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve certain changes to Wisconsin's State Implementation Plan (SIP). 
These changes include defining and removing terms, creating a more 
streamlined process for permit applications and reports submitted 
electronically, and clarifying rules to create a more efficient permit 
issuance process. Approving this revision also makes Wisconsin rules 
consistent with Federal rules.

DATES: Comments must be received on or before January 5, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2020-0504 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: Susan Kraj, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312)353-2654, [email protected]. The EPA Region 5 
office is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays and facility closures due to COVID-19.

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

I. Wisconsin's Submittal
II. Review of the Submittal
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Wisconsin's Submittal

    Wisconsin submitted this SIP revision request on April 6, 2021, and 
supplemental information on June 22, 2021, and July 27, 2021. This 
submittal includes revisions to the definitions in Chapter NR 400, to 
the minor construction permit program in Chapter NR 406, and to the 
operating permit program in Chapter NR 407. Specifically, Wisconsin is 
requesting to repeal NR 406.03(1e)(a), (b), and (j), NR 406.04(1f)(c) 
and (Note), NR 407.02(6)(a)3.(Note), NR 407.11(1)(e) and (3)(c), and NR 
407.12(1)(b)(Note) and (e); to amend NR 400.02(130), (136m)(intro.) and 
(b), NR 406.02(6), NR 406.03(1e)(intro.), (c), (1m)(a), (b), (2)(b)2.c. 
and (g), NR 406.04(1)(i)(intro.), 2, 3, 4, (m)(intro.), (zg)1, 
(1k)(intro.), (1q)(f), (g), (2)(h), (4)(a)5, (b)(title), (b), (h)2, 
(j)2, and (7), NR 406.17(3)(d), NR

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407.02(9), NR 407.03(1)(intro.), (1m)(a)2, (c)1, (2)(f) and (g), NR 
407.05(2) and (6), NR 407.105(3)(b), NR 407.11(1)(a), NR 407.14(1m)(d), 
and NR 407.15(5); and to create NR 400.02(136m)(b)(Note), (136r), 
(162)(a)61 and 62, NR 406.04(1)(a)4m, (bm), (1f)(f) and (4)(e)3, NR 
407.03(1)(a)4m, (bm) and (2)(ba).
    Wisconsin's Department of Natural Resources (WDNR) has requested 
administrative changes to its definitions in Section NR 400. The 
definitions of ``reconstruction'' and ``restricted use RICE'' have been 
amended, the definition for ``RICE'' was created, and two hazardous air 
pollutants (HAPS) have been included to be consistent with the Federal 
definition for volatile organic compounds (VOC).
    WDNR also submitted changes to its minor source construction 
permitting program, NR 406. The definition of ``permit revision'' in NR 
406.02(6), and definitions of ``commence construction'' and ``commence 
modification'' were amended to align with the Federal definitions. The 
list of activities in NR 406.03 (1e) was revised to remove language 
that is outdated. The requirements for application forms were also 
    The State amended NR 406.03(1m) to clarify the procedures for 
applying for a construction permit waiver. Additionally, the State 
amended the meaning of economic hardship to remove language restricting 
economic or financial hardship that could ``preclude the project in its 
    Wisconsin created provisions NR 406.04(1)(a)4m and NR 
407.03(1)(a)4m for external combustion sources that fire ultra-low 
sulfur diesel fuel oil to comply with 40 CFR 80.510. An exemption for 
the incineration of confiscated drugs by a government agency using 
certain equipment with specific parameters and limits was added at NR 
406.04(1)(bm) and NR 407.03(1)(bm).
    Wisconsin amended the provisions in NR 406.04(1)(i) to clarify that 
research and testing exemptions may only be provided for temporary 
changes or temporary equipment. Wisconsin created NR 406.04(1f)(f) to 
require that an operation permit application shall be submitted prior 
to commencing construction or modification even when no construction 
permit is required.
    The State also amended the Plantwide Applicability Limit (PAL) 
provision at NR 406.04(1f)(f) clarifying that new or modified sources 
exempt from construction permitting under a PAL must be included in an 
operation permit application submitted prior to commencing construction 
or modification. Wisconsin is also clarifying in NR 406.04(1k) that the 
exemption for projects evaluated for significant net emissions increase 
can only be requested prior to commencing construction, and that this 
exemption is only available for the modification of an existing 
emission unit and not for the construction of a new emission unit.
    Revisions to NR 406.04(4)(b) allow an exemption for emissions units 
that must meet new or revised VOC reasonably available control 
technology (RACT) rules to also apply to new or revised nitrogen oxides 
    The State has also revised NR 406.04 to clarify that an increase in 
hours of operation does not constitute an exclusion from modification 
if the change is subject to certain Federal requirements, and to 
clarify that the emissions increase being referred to is the maximum 
theoretical emissions increase.
    Revisions were made to NR 406.17(3) to clarify when sources are 
ineligible for coverage under a registration construction permit. Also 
a note referencing previous EPA guidance on determining when a source 
can become an area source referred to as ``once in always in'' has been 
removed as this guidance is no longer applicable.\1\

    \1\ Memorandum: Reclassification of Major Sources as Area 
Sources under Section 112 of the Clean Air Act, William L. Wehrum, 
Assistant Administrator, Office of Air and Radiation, U.S. 
Environmental Protection Agency (January 25, 2018).

    The definition of ``synthetic minor source'' in NR 407.02 has been 
amended to match the Federal policy and guidance on the types of 
actions and permit conditions necessary to establish a facility as a 
synthetic minor source.
    The permit exemptions in NR 407.03(1m)(a)2 and (c)1, and NR 
407.03(2)(f) and (g), are available if the facility is not subject to 
an emission limitation or emission standard under section 111 or 112, 
are amended to be consistent with the parallel exemptions in NR 406.
    NR 407.03(2)(ba) is created to correct an error by including an 
exemption for particulate matter less than 10 microns not to exceed 3.4 
pounds per hour to make the exemption in NR 407 consistent with that in 
NR 406.
    NR 407.05(2) and (6) are amended to remove certain requirements 
relating to submitting multiple paper copies of application materials.
    NR 407.105(3)(b) is amended to replace ``standard or regulation'' 
with ``emission limitation or emission standard''.
    NR 407.11(1)(e) and (3)(c) under administrative permit revisions 
and NR 407.12(1)(b)(Note) and (e) under minor permit revision are 
    NR 407.14(1m)(d) is amended to clarify that correcting a 
typographical error must not substantively change the meaning of a 
permit condition.
    NR 407.15 (5), failure to pay fees, is amended to add citations to 
Wisconsin statute s. 285.

II. Review of the Submittal

    A. Except for the revisions discussed below in Section II.B, 
Wisconsin's submittal includes administrative and non-substantive 
changes such as the removal of outdated language, clarifications of 
rule applicability and correction of errors, and changes to ensure 
conformance with Federal requirements. These revisions remove 
provisions that are obsolete, revise rule language for consistency, or 
clarify provisions which are already in effect as a matter of law in 
the State program. These changes are not substantive, do not affect 
emissions, and do not interfere with requirements of the Clean Air Act 
(CAA). Therefore, EPA is proposing to approve these revisions.
    B. The following revisions in Wisconsin's submittal require further 
analysis: The creation of new exemptions from minor source air 
permitting and the revisions to exemptions from minor source air 
permitting. Specifically, EPA will review the following below: (1) The 
permit exemption for fuel burning installations combusting ultra-low 
sulfur diesel fuel, (2) the exemption for incineration of small 
quantities of confiscated drugs by a government agency, (3) the 
revision to allow temporary steam generating units to operate up to 24 
hours simultaneously with the units they are temporarily replacing 
during periods of startup and shutdown, and (4) the revision to State 
RACT. EPA is using the following criteria to review these changes for 
compliance with Federal requirements--40 CFR part 51, subpart I--Review 
of New Sources and Modifications, and section 110(l) of the CAA.
    40 CFR 51.160 requires that the SIP set forth legally enforceable 
procedures that enable the state or local agency to determine whether 
any construction or modification of a source will (1) cause a violation 
of the SIP or (2) interfere with attainment or maintenance of a 
national ambient air quality standard (NAAQS). Section 110(l) of the 
CAA provides that a revision to a SIP submitted by a state shall be 
only be adopted by the state after reasonable notice and public 
hearing, and the Administrator shall not approve a revision to a SIP if 
the revision would interfere with any applicable

[[Page 68956]]

requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of this chapter.
    WDNR provided opportunities to comment on the proposed rule during 
a public comment period from March 5, 2019 through April 24, 2019, and 
at a public hearing held on April 17, 2019, in accordance with chapter 
227 of the Wisconsin Statutes. Based on our review of the public 
process documentation included in the submittal, we find that the 
Wisconsin has provided sufficient evidence of public notice and 
opportunity for comment and public hearings prior to submittal of this 
SIP revision and has satisfied the procedural requirements for notice 
and a public hearing under CAA section 110(l).
    For the provisions in 40 CFR 51.160, and section 110(l) of the CAA 
that require that the revisions may not cause a violation of the SIP or 
interfere with attainment or maintenance of a NAAQS, Wisconsin's 
submittal includes an analysis to demonstrate these requirements will 
be met. For the reasons discussed below, the new and revised exemptions 
in the submittal will not interfere with any SIP requirement or any 
applicable requirement concerning attainment.
    Wisconsin provided an analysis for the following changes: The 
exemptions in NR 406.04(1)(a)4m and NR 407.03(1)(a)4m for external 
combustion sources that fire ultra-low sulfur diesel fuel oil; the 
exemptions in NR 406.04(1)(bm) and NR 407.03(1)(bm) for incinerators 
operated by a government agency that burn confiscated drugs and meet 
other requirements; the revisions to NR 406.04(1)(zg) to allow 
temporary steam generating units to operate at the same time as the 
permanent steam generation equipment it is replacing for up to 24 hours 
during startup or shutdown; and the revisions to NR 406.04(4)(b) to 
allow the exemption for emissions units that must meet new or revised 
VOC RACT rules, to also apply to new or revised NOX RACT 
    For the exemptions in NR 406.04(1)(a)4m, and NR 407.03(1)(a)4m 
regarding ultra-low sulfur, Wisconsin provided in its analysis that 
this exemption increased the size of exempt units from 10 million 
British thermal units per hour (MMBtu/hr) to 25 MMBtu/hr for external 
combustion furnaces firing ultra-low sulfur diesel fuel. Because of the 
reduction in sulfur content in ultra-low sulfur diesel fuel, emissions 
will not increase when the unit size is increased to 25 MMBtu/hr and 
emissions will remain below all existing SIP-approved exemption 
    For the exemption in NR 406.04(1)(bm) and NR 407.03(1)(bm) for 
incinerators operated by government agencies to burn certain 
confiscated drugs, Wisconsin provided that this exemption follows 
Federal regulations that exclude incineration of confiscated drugs by 
law enforcement and border patrols from the applicable National 
Emission Standards for Hazardous Air Pollutants requirements (40 CFR 
60.2887(p)). Wisconsin also provided emissions estimates (for maximum 
theoretical emissions) based on uncontrolled emission factors for 
medical waste incineration. The State deems these factors similar and 
appropriate because confiscated drugs are likely to be burned with 
plastic or foil packaging and possibly needles. Wisconsin's analysis 
also assumed the worst-case fuel for the emission calculations. 
Wisconsin's emission estimates demonstrate that combusting confiscated 
drugs under the parameters required by NR 406.04(1)(bm) and NR 
407.03(1)(bm) will result in emissions that are less than the existing 
SIP-approved permit exemption thresholds in NR 406.04(2) and NR 
407.03(2). In addition, the rules require the use of a monitoring 
device that continuously measures and records the temperature of the 
secondary chamber of the incinerator to ensure a proper destruction 
    For the revision to the exemption in NR 406.04(1)(zg) for temporary 
steam generating units, Wisconsin explained in its analysis that the 
current unrevised SIP-approved exemption limits these temporary units 
to operating a total of 3,200 hours during nine calendar months, and 
this limit is unchanged by the revision. Therefore, the maximum 
emissions will not increase. The exemption also continues to require 
that the NAAQS are protected at all times the temporary units are 
    The revision to NR 406.04(4)(b) excludes from permit modifications 
changes needed for the source to assure compliance with any new or 
revised RACT requirements for NOX. The revision adds 
NOX to the existing exemption which was for VOC RACT. Before 
any new or revised NOX RACT rules can be SIP-approved, there 
will need to be a demonstration under section 110(l) of the CAA for 
that submittal.

III. What action is EPA taking?

    For the reasons set forth above, EPA is proposing to approve the 
requested revisions to Wisconsin's SIP as submitted on April 6, 2021. 
These revisions were included in the certified Board Order AM-24-12b 
and published in the Wisconsin Administrative Register #777B on 
September 28, 2020. Based on the information submitted by Wisconsin on 
April 6, 2021, June 22, 2021, and July 27, 2021, EPA has determined 
that Wisconsin's submittal is approvable and there were no deficiencies 
found that would prevent EPA approval.

IV. Incorporation by Reference

    In this rule, EPA is proposing to include in 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 revisions to Wisconsin Administrative Code rules NR 400, 406 
and 407 as published in the Wisconsin Register #777B on September 28, 
2020, effective October 1, 2020, discussed in section I of this 
preamble. 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).

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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); 
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 

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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, 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 proposed 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 

    Dated: November 24, 2021.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2021-26148 Filed 12-3-21; 8:45 am]