[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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