

[Federal Register: April 20, 2007 (Volume 72, Number 76)]
[Proposed Rules]               
[Page 19834-19838]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ap07-19]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0609; FRL-8302-8]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; New Source Review Reform ``Linkage'' Rule, Rule AM-32-04b

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve as a revision to the Wisconsin 
State Implementation Plan (SIP) changes to the minor New Source Review 
(NSR) construction permit program and permits fees schedule, through 
rule AM-32-04b. The purpose of rule AM-32-04b is to update Wisconsin's 
minor NSR construction permit program to include changes to implement 
the new elements of the federal ``NSR Reform'' rules for sources that 
are exempt from major NSR permitting requirements. Rule AM-32-04b has 
been created to accompany the ``NSR Reform'' rules and is necessary to 
effectively implement

[[Page 19835]]

the ``NSR Reform'' rules. Elsewhere in today's Federal Register, EPA is 
proposing to approve Wisconsin's ``NSR Reform'' rules. WDNR has also 
established a new fee schedule that will apply to facilities that meet 
the criteria in rule AM-32-04b.

DATES: Comments must be received on or before May 21, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0609, by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
     E-mail: blakley.pamela@epa.gov.
     Fax: (312)886-5824.
     Mail: Pamela Blakley, Chief, Air Permits Section, Air 
Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: Pamela Blakley, 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-
2006-0609. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or e-mail. 

The http://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 e-
mail comment directly to EPA without going through http://www.regulations.gov 

your e-mail 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 
http://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 http://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 legal holidays. We 
recommend that you telephone Danny Marcus, Environmental Engineer, at 
(312) 353-8781 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-8781, marcus.danny@epa.gov.

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 Is Being Addressed In This Document?
III. What Are The Changes That EPA Is Proposing To Approve?
IV. What Action Is EPA Taking Today?
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--The 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 Is Being Addressed in This Document?

    We are proposing to approve changes to the minor NSR construction 
permit program and permits fees schedule of the State of Wisconsin, 
enacted through rule AM-32-04b. EPA granted full approval to WDNR's 
non-attainment NSR (NANSR) program on January 18, 1995 (60 FR 3538) and 
the approval became effective on February 17, 1995. The January 18, 
1995, approval also included WDNR's minor NSR program, which was 
incorporated by reference into Wisconsin's SIP.
    The rule revision being proposed for approval in this action is 
referred to as the ``linkage'' rule and has been created to update 
Wisconsin's minor NSR construction permit program to include changes to 
implement the new elements of the federal ``NSR Reform'' rules for 
sources that are exempt from major NSR permitting requirements. EPA 
published the ``NSR Reform'' regulations, which include revisions to 
the federal Prevention of Significant Deterioration (PSD) and NANSR 
regulations, in the Federal Register on December 31, 2002, which became 
effective March 3, 2003. Elsewhere in today's Federal Register, EPA is 
proposing to approve Wisconsin's ``NSR Reform'' rules.
    The rule revision will affect those facilities seeking an exemption 
from the major NSR program as a result of the actual-to-projected-
actual applicability test, and facilities complying with plant-wide 
applicability limitations (PALs). This rule revision also establishes a 
new fee schedule for facilities utilizing PALs and for facilities 
seeking an exemption determination.
    This rule revision contains a provision that will be applicable to 
the major source facilities that are exempt from major NSR when 
applying the actual-to-projected-actual applicability test in 
circumstances where the

[[Page 19836]]

calculated difference between projected actual emissions and baseline 
actual emissions does not exceed significant thresholds. Facilities 
that meet this criterion will also have to meet the criteria in the 
linkage package in order to be eligible for the exemption. The criteria 
consists of: (1) The modification will not cause or exacerbate an 
exceedance of an ambient air quality increment or standard; (2) the 
modification will not trigger a New Source Performance Standard (NSPS) 
or a National Emissions for Hazardous Air Pollutants (NESHAP) standard; 
and, (3) the modification will not require enforceable conditions to 
limit potential to emit.
    PALs were created so that a facility could make rapid, iterative 
changes optimizing process performance, without the administrative time 
delays and uncertainty associated with permitting. The PAL is believed 
to provide for environmental improvement since its cap-based framework 
encourages emission reductions and pollution prevention. In rule AM-32-
04b, WDNR provides additional clarification for facilities that choose 
to operate under a PAL. EPA has not provided provisions for sources 
operating under a PAL in certain circumstances. Any facility which 
establishes a PAL, or will distribute allowable emissions following 
expiration of a PAL, will comply with the provision section NR 406.035 
and will need a minor NSR construction permit.
    This rule revision contains a provision that will apply to sources 
modifying their facility under a PAL. In order to be eligible for this 
exemption, the source also has to meet the following criteria: (1) The 
modification will not cause or exacerbate an exceedance of an ambient 
air quality increment or standard; (2) the modification will not 
trigger a NSPS or NESHAP standard; (3) the modification does not 
consist of the construction of a new emissions unit which is a 
significant emissions unit under section NR 405.18(2)(h), of the 
Wisconsin PSD program, or section NR 408.11(2)(h), of the Wisconsin 
NANSR program, and which has been operating for less than two years, or 
does not consist of the construction of a ``major emissions unit''; (4) 
the emissions from the source will be able to comply with the PAL; and, 
(5) any increase in emissions, due to the modification, in pollutants 
not regulated by the PAL will not exceed maximum theoretical emissions.
    WDNR has established into its rules a new fee schedule that will 
apply to facilities using PALs and to facilities applying for 
exemptions under the new provisions in this rule. A source will be 
responsible for paying a fee when establishing a PAL limit, increasing 
an existing PAL limit, and when required to distribute limits upon 
expiration of a PAL. Also, there are fees applicable to sources when 
seeking an exemption determination under the new provisions of this 
rule.

III. What Are the Changes That EPA Is Proposing To Approve?

Rule AM-32-04b

Section 1
NR 406.035--Establishment or Distribution of Plant-Wide Applicability 
Limitations
    This provision was established by WDNR to require a facility to 
acquire a minor NSR construction permit when: (1) Establishing a PAL; 
and, (2) distributing allowable emissions following expiration of a 
PAL. In the Federal Register document that promulgated the ``NSR 
Reform'' rules, 67 FR 80208, the section that contained the discussion 
on PALs did not specifically address how PALs should be established. 
However, the document states that a permitting authority must use a 
federally enforceable permit which may include using a minor NSR 
construction permit.
Section 2
NR 406.04(1f)--Modifications to Sources Under Plant-Wide Applicability 
Limitations
    WDNR has established this exemption provision for sources operating 
under a PAL which are seeking to modify their facility. This is 
consistent with the NSR Reform rules. They will not need a construction 
permit as long as the criteria in this provision is met: (1) The 
modification will not cause or exacerbate an exceedance of an ambient 
air quality increment or standard; (2) the modification will not 
trigger a NSPS or NESHAP standard; (3) the modification does not 
consist of the construction of a new emissions unit which is a 
significant emissions unit under section NR 405.18(2)(h), of the 
Wisconsin PSD program, or section NR 408.11(2)(h), of the Wisconsin 
NANSR program, and which has been operating for less than two years, or 
the construction of a ``major emissions unit''; (4) the emissions from 
the source will be able to comply with the PAL; and, (5) any increase 
in emissions, due to the modification, of pollutants not regulated by 
the PAL, will not exceed maximum theoretical emissions.
NR 406.04(1k)--Projects Evaluated for Significant Net Emissions 
Increase
    WDNR has established this exemption provision for sources that are 
modifying existing emission units at a major stationary source whose 
calculated difference between the projected actual emissions and 
baseline actual emissions does not exceed significant thresholds. The 
reform rules exempt any source meeting this criterion from acquiring a 
major NSR construction permit. This provision is consistent with the 
reform rules; it exempts a source from acquiring a permit to construct 
when the project meets the criteria stated in the provision. The 
criteria consist of: (1) The modification will not cause or exacerbate 
an exceedance of an ambient air quality increment or standard; (2) the 
modification will not trigger a NSPS or a NESHAP standard; and, (3) the 
modification will not require enforceable conditions to limit potential 
to emit. A source may still be required to apply for an operating 
permit before construction of the project begins.
Section 3
NR 406.07(3)
    This provision is being established so that any source that 
undergoes a modification that is exempt from the requirement to obtain 
a construction permit under sections NR 406.04 (1f) and (1k) shall be 
treated as a new or modified source for the purposes of the emission 
limitations under chapters NR 400 to 499, unless the modification is 
excluded from being considered a modification under section NR 
406.04(4). The purpose of section NR 406.07(3) is to allow sources to 
take advantage of the federal reform rules without being exempted from 
meeting updated requirements of other rules in the Wisconsin SIP. This 
provision will allow any emission unit being modified under the 
applicability test or PAL provision to be exempt from permitting 
without being exempt from other Wisconsin SIP provisions. As a result, 
facilities will be able to take advantage of the flexibility provided 
by the federal NSR Reform rule, but will not be exempted from meeting 
updated requirements in other rules.
Section 4
NR 406.11(1m)
    WDNR has established this provision so that it may be able to open 
a construction permit for the purposes of decreasing a PAL limit. This 
is consistent with the federal NSR Reform rules. See 40 CFR 
51.166(w)(8)(ii)(a) and 40 CFR 51.165(f)(8)(ii)(A).

[[Page 19837]]

Section 5
NR 410.03(intro.)--Application Fee
    WDNR has modified this existing paragraph. The words, ``under s. NR 
406.04(1)(i) * * *'', have been deleted from the sentence, ``Any person 
required under s. NR 406.04(1)(i) to obtain a determination of 
exemption from the department shall pay the basic fee under sub. 
(1)(b).'' The fee will now apply to any facility requesting an 
exemption, and is not exclusive to section NR 406.04(1)(i) any longer.
Section 6
NR 410.03(1)(a)8. to 10.
    WDNR has established the fees associated with PALs in this 
provision. A facility will be responsible for a fee of $10,150 per 
pollutant when establishing a PAL limit. A fee of $4,850 per pollutant 
will be applicable if a facility decides to increase a PAL limit. When 
a facility comes in for distribution of allowable limits following 
expiration of a PAL, a fee of $4,850 per pollutant will be applicable.
Section 7
NR 410.03(1)(b)1
    This provision was originally section NR 410.03(1)(b). The language 
was modified for consistency.
Section 8
NR 410.03(1)(b)(intro.) and 2. to 4.
    WDNR has reestablished section NR 410.03. This provision explains 
the fees associated with acquiring an exemption under sections NR 
406.04 (1f) and (1k). A facility will be subject to a fee of $1,100 per 
pollutant when seeking an exemption under section NR 406.04(1f), and a 
fee of $4,400 per pollutant when seeking an exemption under section NR 
406.04(1k). There is also a fee of $700 per pollutant for any facility 
which needs a detailed air quality modeling analysis for any 
determination of exemption under sections NR 406.04 (1f) and (1k).

IV. What Action Is EPA Taking Today?

    EPA is proposing to approve into the Wisconsin SIP, rule AM-32-04b, 
changes to the minor New Source Review (NSR) construction permit 
program and permits fees schedule. Rule AM-32-04b will update 
Wisconsin's minor NSR construction permit program to include changes to 
implement the new elements of the federal ``NSR Reform'' rules for 
sources that are exempt from major NSR permitting requirements. This 
new rule will be necessary for AM-06-04, the adopted version of the NSR 
Reform rule, to be implemented appropriately.

V. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 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 proposed 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 proposed action merely proposes to approve state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this proposed 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 proposes to approve 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 proposes to approve a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed 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 (65 FR 67249, November 9, 2000).

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

    This proposed 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 is not economically 
significant.

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 is likely to have a significant adverse effect 
on the supply, distribution, or the use of energy, 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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272 note, requires federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impractical. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Absent a 
prior existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA 
do not apply.

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.


[[Page 19838]]


    Dated: April 11, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
 [FR Doc. E7-7545 Filed 4-19-07; 8:45 am]

BILLING CODE 6560-50-P
