[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Proposed Rules]
[Pages 65046-65049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31280]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI74-01-7303; FRL-5929-8]


Approval and Promulgation of Implementation Plans; Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The purpose of this action is to propose approval of the State 
of Wisconsin's Prevention of Significant Deterioration (PSD) rules, 
Natural Resources (NR) 405.01 through NR 405.17, as a revision to the 
Wisconsin State Implementation Plan (SIP). The State developed rules as 
Wisconsin's plan to prevent significant deterioration of air quality in 
areas designated as unclassifiable or attainment of the National 
Ambient Air Quality Standards (NAAQS) and to satisfy the requirements 
of part C of the Clean Air Act (Act). EPA is approving these rules 
because they meet EPA's regulation governing State PSD programs. In 
addition to the PSD rules, Wisconsin has submitted rules as a revision 
to the SIP to establish breathable particulates (PM-10) as a basis for 
the determination of particle concentrations for permitting purposes 
under the PSD program and, therefore, tie the new source permit 
evaluations directly to human health standards. Finally, Wisconsin 
submitted as a revision to the SIP changes of a ``clean-up'' nature, 
intended to correct errors in content or style, to improve consistency, 
or clarify existing policy and procedures.

DATES: Comments on this revision and on the proposed EPA action must be 
received by January 9, 1998. Comments received in response to EPA's 
January 4, 1994 proposed disapproval of NR 405 will, if still 
applicable, be responded to at the time of EPA's final rulemaking on 
this rule and need not be resubmitted.

ADDRESSES: Comments should be submitted to Carlton Nash, EPA Region 5, 
77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604. Copies of 
the State's submittal and other supporting information used in 
developing the proposed approval are available for inspection during 
normal business hours at the above Region 5 address. Please contact 
Constantine Blathras at (312) 886-0671 to arrange a time if inspection 
of these materials is desired.
    Copies of the submittal are also located at the Bureau of Air 
Management, Wisconsin Department of Natural Resources, 101 South 
Webster Street, P.O. Box 7921, Madison, Wisconsin 53707.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, AR-18J, 77 West 
Jackson Boulevard, Chicago, Illinois, 60604, (312) 886-0671.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    The 1977 Amendments to the Act added part C to Title I, which 
required implementation of a PSD program. On June 19, 1978, EPA 
promulgated a PSD program to meet the requirements of part C, 50 CFR 
52.21, which contains the procedures and requirements which EPA follows 
when it carries out the mandates of part C itself. These Section 52.21 
requirements were then promulgated into those State SIPs where a State 
did not have an approvable plan in place. Section 52.21 provides that 
its requirements and authorities, or part thereof, can be delegated to 
the State and local air programs if EPA determines they have the 
ability and authority to carry out its mandates.
    On June 19, 1978, (43 FR 26410), EPA promulgated the Federal PSD 
program, 40 CFR 52.21 (b-v), into the Wisconsin SIP at 40 CFR 52.2581 
because Wisconsin had not submitted an approvable PSD program. On 
August 19, 1980, EPA gave Wisconsin partial delegation to run the 
Federal PSD program and on November 13, 1987, gave Wisconsin full 
delegation of the program, except for sources within the exterior 
boundaries of a Tribal reservation.
    Section 301(d) of the Act authorizes the Administrator to determine 
which Act authorities are appropriate for Tribes to administer within 
the exterior boundaries of its reservations and to promulgate rules as 
to how Tribes can assume these authorities. These rules were proposed, 
but have yet to be promulgated. EPA recognizes that a Tribe will upon 
promulgation generally have inherent sovereign authority over air 
resources within the exterior boundaries of its reservation, if 
requested and approved. Until such time, EPA will continue to implement 
these programs within the exterior

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boundaries of Indian reservations. Therefore, EPA did not delegate and 
is proposing to not approve Wisconsin's PSD or PM-10 rules for 
application with the exterior boundaries of Tribal reservations.
    On March 16, 1987, the Wisconsin Department of Natural Resources 
(WDNR) requested the Regional Administrator to include Chapter NR 405 
of the Wisconsin Administrative Code as part of the SIP to meet the 
requirements of part C of the Act and as a replacement for EPA's 
delegated program (40 CFR 52.2581). Rule NR 405 deals exclusively with 
PSD permitting requirements. On January 4, 1994 (59 FR 278), EPA 
proposed to disapprove Wisconsin's PSD SIP revision, NR 405.01 through 
NR 405.17. The deficiencies in the proposal were addressed by the WDNR 
in comments on March 8, 1994, and, to avoid having the SIP revision 
formally disapproved, the WDNR withdrew the original submittal.
    On November 6, 1996, the WDNR submitted a request for approval of 
its PSD program, as revised. More specifically, this submittal 
addresses the deficiencies listed in the January 4, 1994, Federal 
Register document proposing to disapprove the State of Wisconsin's PSD 
rules as a revision to the Wisconsin SIP. On December 18, 1996, EPA 
sent a letter to the WDNR deeming the revised submittal complete and 
initiating the processing of the request. The following analysis 
addresses the review of the submittal with respect to the requirements 
found in EPA's regulation governing State PSD programs (40 CFR 51.166).

II. Approvability Analysis

    Wisconsin NR 405 deals exclusively with PSD permitting 
requirements. EPA evaluated NR 405 by comparing each section of the 
rule to the appropriate paragraph of 40 CFR 51.166 (formerly 40 CFR 
51.24). Listed below are the deficiencies formerly found and raised in 
the January 4, 1994, Federal Register document and how the WDNR 
addressed those concerns. All other portions of NR 405 were found 
previously to be approvable and remain so.

A. NSPS and NESHAP

    1994 Deficiency: The Federal PSD definitions at 40 CFR 51.166 
pertaining to (1) Best Available Control Technology'' (BACT), (2) 
``Allowable emissions,'' (3) ``Federally enforceable,'' and (4) the 
control technology review requirements make reference to applicable 
standards and standards of performance under 40 CFR part 60 (NSPS) and 
40 CFR part 61 (NESHAPS), respectively. In the comparable provisions of 
the State rule, the State referred to other NR 400 series chapters, 
i.e., NR 400, 445 to 499, and 400 to 499 of the State code. Although 
the State may have intended that these chapters approximate the 
requirements of 40 CFR part 60 and 40 CFR part 61, Wisconsin's NSPS and 
NESHAP regulations are not federally enforceable and may, in certain 
circumstances, differ significantly from the parts 60 and 61 
requirements in the Federal PSD requirements. Furthermore, the 
references to parts 60 and 61 requirements in the Federal PSD 
requirements for BACT and control technology review (sections 51.166 
(b)(12) and 51.166 (j)(1), respectively) set minimum emissions 
requirements. Because under the State rules, the State could set less 
stringent NSPS and NESHAP emission limits than the Federal standards, 
or not set any limits at all, the State PSD provisions which were 
dependent upon the requirements of Chapter NR 400 and Chapters NR 445 
to 499 were not approvable. Section 116 of the Act prohibits States 
from adopting standards and limitations that are less stringent than 
Federal standards and limitations.
    WDNR Response: Wisconsin changed the definitions of ``allowable 
emissions'' (NR 405.02(2), Wis. Adm. Code), ``BACT'' (NR 405.02(7), and 
``federally enforceable'' (NR 400.02(39M). Wisconsin also changed 
section NR 405.08, to reflect the requirement that limits set in a PSD 
permit can not be less stringent than an applicable requirement in 40 
CFR parts 60, 61, or 63, in addition to the requirements contained in 
the States rules.
    EPA Analysis: WDNR has adequately addressed the deficiency.

B. Stack Height

    1994 Deficiency: The provisions in 40 CFR part 51, Subpart I--
``Revision of New Sources and Modifications'' set forth both general 
and specific requirements for permitting PSD sources, including 
definitions. In order for the State to implement the stack height 
provision in accordance with 40 CFR 51.164 and 51.166(h), it must have 
definitions of such terms as ``stack,'' ``dispersion technique,'' and 
``good engineering practice.''
    WDNR Response: On November 6, 1985, the State submitted a letter 
stating that permits issued for new or modified sources will conform 
with the requirements with the Stack Height Regulation, as set forth in 
the Federal Register on July 8, 1985, until such time that the State 
promulgates it own rule.
    EPA Analysis: As submitted, this provision meets the stack height 
requirements of the PSD program, and EPA approved Wisconsin's 
commitment on August 4, 1989 (54 FR 32074), as a portion of Wisconsin's 
stack height plan. Wisconsin understands that the current commitment 
stated in the Federal Register document is still approvable. No 
additional corrections are needed.

C. Federally issued PSD permits

    1994 Deficiency: The State's definition of ``major modification,'' 
NR 405.02(21)(b)(c), exempted increases in hours of operation or 
production rates from review unless such increases were prohibited by 
permits issued after January 6, 1975, under NR 405. This rule was 
deficient for not requiring review of sources with such increases if 
the increases were prohibited by previously issued Federal permits or 
during the period when EPA issued the permits prior to the delegation 
of the program's authority. The State rule only exempted from the 
exclusion those permits with conditions ``pursuant to this chapter,'' 
i.e., the Wisconsin rule. There was no requirement for review of 
modifications to federally issued permits with exemptions pursuant to 
40 CFR 52.21.
    WDNR Response: Wisconsin changed the definition of ``major 
modification'' (NR 405.02(21)(b)6., to include any language excluding 
from exemption actions prohibited by federally issued permits pursuant 
to 40 CFR 52.21.
    EPA Analysis: WDNR has adequately addressed the deficiency.

D. Source specific allowable emissions

    1994 Deficiency: NR 405.02(1) contains the term ``source specific 
allowable emissions''. The meaning of the term was unclear. The 
analogous Federal rule in 40 CFR part 52 depends upon the preamble 
language published in the Federal Register on August 7, 1980 (45 FR 
154) to quantify the term to exclude cases where data on actual 
emissions are available. EPA recommended that the language in NR 
405.02(1) be clarified so that the State term would have the same 
meaning as the Federal term.
    WDNR Response: Wisconsin disagreed with EPA's assessment and 
consequently did not take action to clarify the phrase ``source 
specific allowable emissions'' contained in NR 405.02(1)(b).
    Wisconsin noted that EPA implements the Federal PSD program under 
40 CFR part 52 whereas part 51 contains SIP requirements. EPA has 
promulgated the requirements for SIP

[[Page 65048]]

approval of the PSD program in 40 CFR 51.166.
    Section 40 CFR 51.166(b) states:

    ``All State plans shall use the following definitions for the 
purposes of this section. Deviations from the following wording will 
be approved only if the State specifically demonstrates that the 
submitted definition is more stringent, or at least as stringent, in 
all respects as the corresponding definitions below.''

    Section NR 405.02(1)(b), which contains the phrase ``source 
specific allowable emissions'' uses this term in exactly the same 
manner as EPA uses it in 40 CFR 51.166(b)(21)(iii), the definition 
which 40 CFR 51.166(b) requires the State plan to use. Nowhere in 40 
CFR 51.166 is there a requirement that ``source specific allowable 
emissions'' be defined even though it appears in the part 52 Federal 
regulation. Wisconsin asserted that if EPA wanted States to define this 
term in State rules, EPA could have and should have put such a 
requirement in 40 CFR 51.166(b).
    WDNR also demonstrated that the requirements in the State rule meet 
the SIP requirements in 40 CFR part 51, and that the preamble in the 
Federal Register regarding 40 CFR part 52 does not apply to 40 CFR part 
52 approvals.
    EPA Analysis: The State definition meets the Federal definition 
found in 40 CFR 51.166(b)(21)(iii) and is approvable.

E. PSD Increments

    1994 Deficiency: The State PSD increments for sulfur dioxide and 
particulate matter are found in Chapter NR 404.05. The increments were 
not included in Wisconsin's March 16, 1987 PSD submittal.
    WDNR Response: Wisconsin included the increments in its November 
24, 1992, submittal.
    EPA Analysis: WDNR has adequately addressed the deficiency.

F. Modeling Guidelines

    1994 Deficiency: The modeling guidelines referenced in NR 405.10 
were outdated, although they were current at the time of the 1987 
submittal. To make NR 405.10 approvable as a SIP revision, it would 
either have to reference the most recent guidelines (see 40 CFR 165(1)) 
or state that the applicant must use EPA's most current applicable 
guideline models.
    WDNR Response: Wisconsin changed NR 405.10 to require the use of 
``air quality models, data bases, and other requirements specified in 
the Guideline on Air Quality Models (Revised) in Appendix W of 40 CFR 
part 51, incorporated by reference in NR 484.04. The rulemaking on this 
change to NR 405.10 was completed at the same time as the PM-10 
increment rules. The PM-10 increment rules (AM-27-94) are being 
submitted for approval as well.
    EPA Analysis: WDNR has adequately addressed the deficiency.

G. Nitrogen dioxide (NO<INF>2</INF>) Increments

    Original Deficiency: On October 17, 1988 (53 FR 40656), EPA 
promulgated PSD air quality increments for NO<INF>2</INF>. The States 
were required to submit to EPA by July 17, 1990 plan revisions to 
protect the NO<INF>2</INF> increments.
    WDNR Response: Wisconsin submitted such increments to EPA on 
November 24, 1992.
    EPA Analysis: This submittal meets the NO<INF>2</INF> increment 
requirements and is approvable.

H. Particulate Matter (PM) significant level

    1994 Deficiency: On July 1, 1987 (52 FR 24713), EPA promulgated the 
significant level for PM at 15 tons per year. Wisconsin submitted two 
PM SIP revisions on March 13, 1989 and May 10, 1990 to meet the Federal 
PM requirements. These submittals were proposed for approval on March 
13, 1989, (NR 400.02, 404.02, 405.02, 406.04, 484.03) which contains 
the PM significant level, and May 10, 1990 (NR 404.04, 484.03). EPA 
then proposed to disapprove the package on December 23, 1992.
    WDNR Response: After receiving comments from the State, EPA moved 
to approve the package. The final rulemaking approving the PM-10 SIP 
rules was published on June 28, 1993 (58 FR 34528).
    EPA Analysis: All necessary actions regarding this deficiency are 
completed.
    Because of the revisions made to NR 405 as a result of the 
deficiencies raised in previous analysis, and because the remainder of 
NR 405 remains approvable, NR 405 is being proposed for approval with 
respect to meeting the Act part C requirements.
    Chapter NR 405 presumes to apply PSD regulation within the total 
area of the State of Wisconsin. As stated above, EPA is proposing to 
approve this rule for all portions of the State of Wisconsin except for 
those sources within the exterior boundaries of Indian reservations. 
EPA will issue PSD permits, as needed, to all such sources.

III. Final Action

    The EPA is proposing to approve the November 6, 1996, request by 
the State of Wisconsin for approval as a revision to its SIP of its 
rules meeting the requirements of part C of the Act, the adoption of 
the Federal PM-10 increments, and clarification changes intended as a 
``clean-up'' of existing air pollution control rules.
    Copies of the State's submittal and other information relied upon 
for this proposal are contained in a rulemaking file maintained at the 
EPA Regional office. The file is an organized and complete record of 
all information submitted to, or otherwise considered by, EPA in the 
development of this proposed approval. The file is available for public 
inspection at the location listed under the ADDRESSES section of this 
document.

IV. Administrative Review

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. EPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. (5 U.S.C. 603 and 604) 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This action is exempt from OMB review.

V. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995, signed into law on March 22, 1995, EPA must undertake 
various actions in association with proposed or final rules that 
include a Federal mandate that may result in estimated costs of $100 
million or more the private sector, or to State, local, or tribal 
governments in the aggregate.
    EPA has determined that the approval action promulgated does not 
constitute a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector.
    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of this rule in

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the Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, New source review, Nitrogen dioxide, 
Particulate matter, Reporting, and recordkeeping requirements, Sulfur 
dioxide, Volatile organic compounds.

    Authority: 42 U.S.C. 7401, et seq.

    Dated: November 14, 1997.
David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 97-31280 Filed 12-9-97; 8:45 am]
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