

[Federal Register: December 4, 2007 (Volume 72, Number 232)]
[Proposed Rules]               
[Page 68119-68121]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de07-27]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-0717; FRL-8501-6]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Approval of Construction Permit Waiver

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 May 1, 2007. The WDNR has submitted for 
approval into its SIP a revision which allows the State to issue a 
waiver to a source allowing it to commence construction prior to a 
construction permit being issued, in certain cases. This provision is 
only allowed for minor sources which meet specific criteria, and WDNR 
must follow established procedures to grant a waiver. In addition, the 
revision also contains changes to Wisconsin's fee provisions to allow a 
fee to be charged for the waiver. EPA is proposing to approve this 
revision because it is consistent with Federal regulations governing 
state permit programs.

DATES: Comments must be received on or before January 3, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0717, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    2. E-mail: blakley.pamela@epa.gov.
    3. Fax: (312)886-5824.
    4. Mail: Pamela Blakley, Chief, Air Permits Section, Air Programs 
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    5. 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-
2007-0717. 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

[[Page 68120]]

facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. We recommend that you telephone Susan 
Siepkowski, Environmental Engineer, at (312) 353-2654 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Susan Siepkowski, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-2654, siepkowski.susan@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 Has Wisconsin Submitted?
III. Does This Submittal Comply With Federal Regulations?
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 Has Wisconsin Submitted?

    On May 1, 2007, WDNR submitted a SIP revision request to EPA for 
approval. The submittal requests that EPA approve the following 
revisions to WDNR's SIP: to renumber and amend NR 406.03, to amend NR 
410.03(intro.) and to create NR 406.03(2) and NR 410.03(l)(bm). These 
changes would allow WDNR to issue a waiver to a source allowing it to 
commence construction prior to a construction permit being issued. 
These revisions also contain changes to Wisconsin's fee provisions to 
allow a fee to be charged for the waiver.
    The WDNR held two public hearings in August 2006 and the comment 
period for this rule closed on August 18, 2006. The WDNR proposed this 
rule revision to the Wisconsin Natural Resources Board for adoption, 
and the Board approved the final rule on March 22, 2007.
    Wisconsin Rule NR 406 contains the requirements and procedures for 
construction permits. The revisions to NR 406.03 require the following 
conditions to be satisfied before the State may grant a source a 
waiver: (1) A complete construction permit application has been 
submitted for the source; (2) the source and the proposed project will 
result in the source remaining a true minor source (no synthetic minor 
or netting permits); (3) the waiver requests must demonstrate that 
undue hardship will result if the waiver is not granted. Undue hardship 
may result from adverse weather conditions, catastrophic damage of 
existing equipment, a substantial financial hardship that may preclude 
the project in its entirety, and other unique conditions; (4) the 
source is not located or to be located within 10 kilometers of a Class 
I area.
    The rule further states that a waiver does not obligate the WDNR to 
ultimately approve the project, or relieve the source from compliance 
with any applicable regulation. Finally, if a waiver is granted and the 
source proceeds with construction, the rule specifies that it is doing 
so at its own risk, and the source may not operate until the permit is 
issued. WDNR may rescind a waiver if the owner or operator does not 
diligently respond to inquiries on the construction permit application 
or if WDNR preliminarily determines that the source will not meet the 
criteria for permit approval.
    Additional changes are being made to NR 410, Wisconsin's air permit 
fee rules, to include fees for waivers. NR 10.03(1)(a)(5), related to 
the fees for a construction permit revision, is amended to exempt the 
fee if the requested revision is to make the source eligible for a 
registration operation permit.

III. Does This Submittal Comply With Federal Regulations?

    EPA reviewed Wisconsin's May 1, 2007, SIP revision submittal to 
determine completeness, in accordance with the completeness criteria 
set out at 40 CFR part 51, appendix V (1991), as amended by 57 FR 42216 
(August 26, 1991). We found the submittal to be complete.
    EPA evaluated Wisconsin's waiver rule with respect to the SIP 
approval criteria established in EPA's June 28, 1989, rulemaking 
``Requirements for the Preparation, Adoption, and Submittal of 
Implementation Plans,'' (EPA's 1989 rulemaking); Approval and 
Promulgation of Implementation Plans, 54 FR 27274. In addition, EPA has 
evaluated WDNR's rule with respect to relevant Federal rules and 
guidance documents, as discussed in more detail below.
    Section 165 of the Clean Air Act (Act) sets forth preconstruction 
requirements for the Prevention of Significant Deterioration (PSD) 
program. Specifically, ``(a) No major emitting facility on which 
construction is commenced after the date of the enactment of this part, 
may be constructed in any area to which this part applies unless (1) a 
permit has been issued for such proposed facility in accordance with 
this part setting forth emission limitations for such facility which 
conform to the requirements of this part.''
    However, this requirement only applies to major sources, and no 
such restriction is specified under the minor New Source Review (NSR) 
program requirements, which are set forth in 40 CFR 51.160. In 
addition, EPA has made determinations which further support that 
construction may begin before a permit is issued for minor sources. For 
example, EPA's October 10, 1978, memorandum from Edward E. Reich to 
Thomas W. Devine in Region 1 discusses preconstruction activities 
allowed at a site with both PSD and non-PSD sources. This memo states 
that construction may begin on PSD-exempt projects before the permit is 
issued.
    Furthermore, EPA approved a rule for Idaho's permit program which 
allowed construction to commence prior to a permit being issued. (See 
68 FR 2217, final rule.) The August 13, 2002, Federal Register proposed 
approval of Idaho's rule, Section 213, regarding construction prior to 
final permit issuance, states:

    Section 213, entitled ``Pre-Permit Construction'' allows 
construction to commence on certain non-major sources and non-major 
modifications prior to receiving a final permit to construct, 
provided certain conditions are met. EPA believes that this 
provision is consistent with the requirements of section 
110(a)(2)(C) of the CAA and 40 CFR 51.160, including 40 CFR 
51.160(b), which requires States to have legally

[[Page 68121]]

enforceable procedures to prevent construction or modification of a 
source if it would violate any SIP control strategies or interfere 
with attainment or maintenance of the NAAQS. (See 67 FR 52666).

    WDNR's rule revision provides that waivers can only be granted for 
minor sources, and the rule complies with EPA's minor source NSR rules 
set forth at 40 CFR 51.160. The minor source NSR rules require a state 
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 National Ambient Air Quality Standards (NAAQS); and, 
(2) that includes procedures to ``prevent the construction or 
modification'' of the source if it would interfere with the SIP or 
attainment or maintenance of the NAAQS. 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. Additionally, WDNR can rescind a waiver if 
the source does not meet the criteria in Wis. Statute 285.63(1), which 
contain the criteria for permit application approval, including that 
the source will not cause or exacerbate a violation of any NAAQS or 
ambient air increment, and that the source will meet all applicable 
emission limitations and other requirements promulgated under the 
chapter.
    Finally, the rule contains the following additional safeguards. 
First, granting a waiver does not obligate the WDNR to ultimately 
approve the proposed project, or relieve the source from compliance 
with any applicable regulation. Second, if a waiver is granted and the 
source proceeds with construction, the rule specifies that it is doing 
so at its own risk, and the source may not operate until the permit is 
issued.
    Based on EPA's regulations and guidance, and the reasons set forth 
above, we believe that WDNR's SIP revision is approvable.

IV. What Action Is EPA Taking Today?

    EPA is proposing to approve revisions to Wisconsin SIP rules NR 406 
and 410 submitted by the State on May 1, 2007. EPA also is soliciting 
comment on this proposed approval.

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 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 proposes approval of 
a state rule implementing a Federal standard.

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 regulatory 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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272, 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 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 
Act. Therefore, the requirements of section 12(d) of the NTTAA 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.

    Dated: November 23, 2007.
Gary Gulezian,
Acting Regional Administrator, Region 5.
[FR Doc. E7-23482 Filed 12-3-07; 8:45 am]

BILLING CODE 6560-50-P
