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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [EPA-R05-OAR-2006-0609; FRL-8302-8] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Proposed rule. 

# 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                               ( print 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: 
      -  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                         *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 e-mail. 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 e-mail comment directly to EPA without going through                         *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                         *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 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                           ( print 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).                           ( print 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

      ( print 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