[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]
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ENVIRONMENTAL PROTECTION AGENCY
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.
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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
clarified.
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
entirety.''
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
(NOX) RACT.
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\
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\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).
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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
repealed.
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
rules.
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
thresholds.
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
efficiency.
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
operating.
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
Executive
[[Page 68957]]
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
requirements.
Dated: November 24, 2021.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2021-26148 Filed 12-3-21; 8:45 am]
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