# / State of Wisconsin DEPARTMENT OF NATURAL RESOURCES 101 S. Webster Street Box 7921 Madison WI 63707-7921



### May 12,2011

Ms. Susan Hedman USEPA-Region V 77 West Jackson Boulevard Chicago IL 60604 Scott Walker, Governor Cathy Stepp, Secretary Telephone 608-266-2621**~~~1.J::::~-..** ........ -. F WISCONSIN

AX 608-267-3679 DePT. OF NATURAL RESOURCES TTY Access via relay

- 711



### Subject: Federal Re-designation of Forest County Potawatomi Reservation Community as a nonFederal Class I area for Prevention of Significant Deterioration of air quality

Dear Ms. Hedman:

Region V, WDNR, and the Forest County Potawatomi Community (FCPC) have worked together over the last 12 years regarding the re-designation of certain parcels of FCPC land from a Class 2 prevention of prevention of significant deterioration (PSD) air quality designation to a non-Federal PSD Class I area. This SIP submittal contains a rule, AM-12-10, which incorporates the federal re-designation of certain parcels of the FCPC Reservation as a non-Federal Class I area for PSD into ch. NR 405, Wis. Adm. Code.

We ask Region V to process this SIP submittal as expeditiously as possible. If you should have any questions regarding this submittal, please call Andrew Stewart of my staff at 608 266-6876 or email him at Andrew.stewart@wisconsin.gov

Andrew Stewart

- AM Ralph Patterson

- AMI7 Pat Stevens

- 

### AD/8 (w/o 

### enclosures) Cheryl Newton

- USEPA Region 5 (A -18J), 77 West Jackson Boulevard, Chicago, IL 60604-3507 (w/o 

### enclosures)

Enclosures:

• SIP Checklist

• SIP Certification Form

• Public Hearing Notice

• Class I Public Hearing notiCe

• Rule-AM-12-10

• Background Memo

• DNR Green Sheet showing DNR Board's adoption of AM-12-10

dnr.wi.gov wisconsin.gov 

## Naturally 

# WISCONSIN

# ~'**PRINTEO ~"**  ". ON RECYCLED

, , PAPER

# EPA Region V 

# Wisconsin SIP Submittal Completeness Review

Submittal Letter

1. Signed by Governor’s Designee (John Melby, Jr.)? Yes _x__ No ___ 2. Date of Subm ittal _______M ay 20, 2011_______________________________ 3. WDNR Person in charge of SIP submittal. Name __Ralph Patterson__ Telephone __608-267-7546__ FAX Number ___608-267-0560______ E-MAIL Address______________________________ 4. WDNR Technical Person in charge of answering questions on SIP Submittal Name __Steve Dunn___ Telephone __608-267-0566__ FAX Number ____608-267-0560____ E-MAIL Address___steven.dunn@wisconsin.gov 

# Incorporation Into Wisconsin Administrative Code

5. Is evidence that the State incorporated the revision into the Wisconsin Administrative Code supplied in this SIP package? Yes _X_ No__ if No explain.

6. The effective date of the re gulation is or was __December 1, 2010___

7. Are test methods/rules incorporated by reference correctly? (Has approval been obtained from the state Attorney General

Yes_______ No_______ Not applicable __X_____ For No and Not applicable explain answer. No test methods or rule are included in the rule revision.

8. Has WDNR provided evidence that it has necessary legal authority under State law to adopt and implement the revision?

Yes __X_____ No _______ Additional Explanation (if necessary).

9. Did the State include a copy of the actual regulation or document for USEPA review?

Yes _X___ No_____ Additional Explanation (if necessary).2

10. Did the State provide evidence that it followed all of the requirements of its Administrative Procedures Act (ch. 227, Wis. Stats., Administrative Procedure and Review) in conducting and completing adoption/issuance of the revision?

Yes__X__ No______ Additional Explanation (if necessary)

11. Did the State include evidence that Public Notice was given of the revision, including date of publication? Yes__X__ No ____ Additional Explanation (if necessary)

12. Did the State provide a copy of the certification that public hearings were held in accordance with the information provided in the public notice (copy of notarized Class I paper proof).

Yes_X__ No___ Additional Explanation (if necessary).

13. Does the submittal contain a compilation of public comments and the State’s response?

Yes__X__ No____ Additional Explanation (if necessary).



# Technical Issues

14. Name the all the regulated pollutants affected by the revision? ___not applicable________

15. Does the submittal identify the designation, status of the attainment plan and attainment date for the area(s)

Yes____ No__X___ Additional Explanation (if necessary) Not applicable

16. Does the submittal identify the location and types of affected sources?

Yes__X___ No_____ Additional Explanation (if necessary)3

17. Does the submittal quantify the changes in SIP-allowable emissions and estimate or quantify the changes in actual emissions from affected sources?

Yes_X__ No____ Additional explanation (if necessary)

18. Has the State demonstrated that the NAAQS/PSD In crement/RFP demonstration/vi sibility will be protected if the revision is approved and implemented?

Yes____ No__X__ Additional explanation (if necessary) Not applicable

19. Has the State provided modeling information to support the revision.

Yes___ No____ Unnecessary__X__

20. Has the State provided evidence that emission limitations are based on continuous emission reduction technology?

Yes____ No__X__ Additional explanation (if necessary) Not applicable

21. Has the State provided evidence that the revision contains emission limitations, work practice standards and record keeping/reporting requirements where necessary, to ensure emission levels?

Yes___ No__X__ Additional explanation (if necessary) Not applicable

22. Does the submittal contain enforcement/compliance strategies including how compliance will be determined in practice, and at what frequency?

Yes___ No_X__ Additional explanation (if necessary) Not applicable4



# STATE APPROVABILITY CHECKLISTENFORCEABILITY

USEPA USE ONLY

SIP Package Number ___________ Date Received by USEPA ________________ Date Due_____________________________ State: WISCONSIN5



# WDNR Information

Subject Matter: Revisions to Wisconsin’s prevention of significant deterioration new source review SIP through the amending/creation of certain sections of NR 400 and 405, Wis. Adm. Code.



## Applicability

USEPA Question USEPA Requirement State Response What sources are being regulated? Clear discussion Major sources and major modifications at major sources within a radius of 22.25 miles of the geographic center of the Forest County Potawatomi Community (FCPC) Class I area.

Specifically, this rule incorporates the federal designation of the FCPC as a non-Federal Class I area for the prevention of significant deterioration of air quality, and include portions of a Final Agreement reached between the state and the FCPC concerning the Class I area. What are criteria for exemption? Clear discussion Not applicable Is calculation procedure for exemption clearly specified? Supply example calculation or clear explanation of how to determine exemption (line by line, etc.) Not applicable

Is emission inventory listed in the background document of the attainment demonstration? Inventory including allowable and actual emissions in source category should be included, for enforcement purposes and independent of any Clean Air Act requirements, in the attainment demonstration if such data is necessary for determining baselines in regulations. Not applicable

Is the averaging time(s) used in the rule different from that of the ambient standard? The averaging time in the rule must be consistent with protecting the ambient standard in question. Normally, it should be equal to or shorter than the time associated with the standard. Longer term averaging is available only in limited instances provided that the ambient standard is not compromised. Not applicable

What are the units of compliance (lbs VOC per gallon of solids applied less water, grains per standard cubic foot?) Clearly stated in the rule. Not applicable

Is bubbling or averaging of any type allowed? If yes, state Explicit description of how averaging, bubbling, or equivalency is to be determined. VOC Not applicable6

criteria. Could a USEPA inspector independently determine if the criteria were met?? Does USEPA have to approve each case? equivalency must be on a “solids applied” basis. Any method must be independently reproducible. Provision must be explicit as to whether USEPA case-by-case approval is required. If provision intended to be “generic” then USEPA bubble policy must be met. If there is a redesignation, will this change the emission limitations? If yes, which ones and how? Regulation may not automatically allow for self nullification upon redesignation of area to attainment. New maintenance demonstration required to order to drop regulation. Not applicable



## Compliance Dates

USEPA Question USEPA Requirement State Response What is the compliance date? The compliance date must not be later than the approved or about to be approved date of attainment unless emission reductions are not necessary for attainment. In some cases, it will be necessary for the regulation to specify dates in compliance schedules that are required to be submitted by
source to state. December 1, 2010

What is the attainment date? Clearly defined. Not applicable


## Specificity of conduct

USEPA Question USEPA Requirement State Response What test method is required? Test method must be explic itly stated. Not applicable What is the averaging time in the compliance test method? Averaging time and application of limit must be explicit. Not applicable

Is a compliance calculation or evaluation required? (i.e., daily weighted average for VOC). Clearly defined. Not applicable

If a compliance calculation is necessary, list the formula, period of compliance, and/or evaluation method. Formula must be explicit. Not applicable



## Incorporation by reference

USEPA Question USEPA Requirement State Response What is the state authority for rulemaking. Clearly stated. Section 227.11(2)(a), Stats., gives state agencies general rulemaking authority. Section 285.11(1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.11(6), Stats., requires the Department to develop a7

plan for abatement of air pollution in the State. The permitting program, in general, and these regulations specifically, is part of that plan.

These rules are based on federal rules a well as a 1999 Final Agreement reache d between the State and the Forest Count y Potawatomi Community (FCPC). Are methods/rules incorporated by reference in the right manner? Clearly stated. Not applicable



## Record keeping

USEPA Question USEPA Requirement State Response What records are required to determine compliance? Clearly stated. Not applicable

In what form or units (lbs/gal, gr/dscf, etc.) must the records be kept? On what time basis (instantaneously, hourly daily)? Records to be kept must be consistent with units of compliance in the performance requirements, including the applicable time period . Not applicable

Does the rule affirmatively require the records be kept? There must be clearly defined and distinguishable from what constitutes a violation. Not applicable



## Exemptions

USEPA Question USEPA Requirement State Response List any exemptions allowed. Must be clearly defined and distinguishable from what constitutes a violation. None allowed

Is the criteria for application clear ? Clearly stated. Not applicable



## Malfunction Provisions

USEPA Question USEPA Requirement State Response Are there any malfunction provisions in the rule? Rule must specify what exceedances may be excused, how the standard is to be applied, and who makes the determination. Not applicable

### WISCONSIN DEPARTMENT OF NATURAL RESOURCES

BUREAU OF AIR MANAGEMENT

ST ATE IMPLEMENTATION PLAN REVISION CERTIFICA nON

Pursuant to the requirements of 40 CFR s. 5 1.102(1), I hereby certify that the Wisconsin Department of Natural Resources held the hearing described below; that the hearing was held in accordance with the public notice (copy attached), as required by 40 CFR s. 51.1 02( d); and that I was the presiding officer at the hearing.

Subject:

Revisions to SIP relating to air pollution permit requirements for Class I areas, and affecting small businesses.

Hearings held:

Monday, June 7th, 2010 in Madison, Wisconsin; and, Wednesday June 9 th 

### in Wausau.

Written comments were received until June 14,2010.

# ~()Jd2t Michael D. Scott BUREAU OF LEGAL SERVICES

Notary P c, State ofW onsin My commission is permanent. Subscribed and sworn to before me This """" day of May, 2011

# .yOI\

BEFORE THE DEPARTMENT OF NATURAL RESOURCES

NOTICE OF PUBLIC HEARING Natural Resources Board Order AM-12-1 0

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a pUblic hearing on creating rules affecting chs. NR 400, 405, and 406, relating to permit requirements for Class I areas, and affecting small business.

Hearing Information Date and Time 

### June 7,2010, Monday at 2:00 PM

June 

### 9, 2010, Wednesday at 1:30 PM Location 

### Natural Resources State Office BUilding Room 

### GOg 101 S. Webster Street Madison, WI

Northcentral Technical College Main Building, Room E101 1000 West Campus Drive Wausau, WI

Reasonable accommodations, including the provision of informational material in an altemative format, will be provided for qualified individuals with disabilities upon request Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AMI7), 101 S Webster, Madison, WI 53707; by E-mail to Robert.EckdaJe@wisconsin.gov ; or by calling (608) 266-2856. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Availability of the Proposed Rules and Fiscal Estimate The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/air/ruleslcalendar.htm

. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AMI7), 101 S. Webster St, Madison, WI, 53703, or by calling 608.266.2856.
Submitting Comments Comments on the proposed rule must be received on or before June 14, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Intemet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to: Steve Dunn Department of Natural Resources Bureau of Air Management (AMI7) 101 

### 5 Webster St, Madison, WI 53703

Phone: Fax: E-mail: Internet: 608 267-0566 608 267-0560 Steven Dunn@wisconsin.gov Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http·lIdnr.wi.gov/air/rules/calendar.htm
Analysis Prepared by the Department of Natural Resources Statute interPreted: 

### The State Implementation Plan developed UDder s. 285.11 (6), Stats., is revised.
Statutory authority:ss. 227.11 (2)(a) and 285.11 (1) and (6) Stats.



### Explanation of agency authority: Section 227.11 (2)(a), Stats., gives state agencies general rulemaking authority. Section 285.11 (1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.11 (6), Stats., requires the Department to develop a plan for abatement of air pollution in the State. The permitting program, in general, and these regulations specifically, is part of that plan.

These rules are based on federal rules as well as a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community (FCPC).



### Related litatute or rule: The FCPC Class I area was established as part of a Federal Implementation Plan approved by USEPA in

an April 29, 2008 Federal Register Notice.



### Plain language analysis: This rule is being proposed to amend portions of Department rules to incorporate the federal redesignation of certain parcels of the Forest County Potawatomi Community Reservation as a non-Federal Class I area for the prevention of significant deterioration (PSD) of air quality, and to include portions of a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community concerning the Class I area.

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to preserve air quality in Class I areas such as national parks and other areas meeting National Ambient Air Quality Standards. Class I areas are subject to lower allowable increases in ambient concentrations of particulate matter, sulfur diOXide, and nitrogen dioxide.


### Summary 

### of, and comparison with, existing or proposed federal regulation: In an April 29, 2008, Federal Register Notice, the USEPA established the FCPC Class I area. The Department and the FCPC have agreed to provisions impacting the FCPC Class I area that USEPA stated, in the April 29, 2008, notice, need to be promUlgated as part of the State's Implementation Plan for controlling air pollution in order to be effective for federal purposes. 

### Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota): There are no non-federal Class I areas or non-federal Class I rules in any of these states.


### Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen: The proposed rule is based on the federal re-designation of the FCPC Reservation lands to non-federal Class I, and the Final Agreement.


### Analysis and supporting documents used to determine the effect 

### on small business or in preparation of an economic impact report: An analysis of the effect of the proposed rules on small business was not performed since the proposed rule only impacts major sources of air pollution in the State and conforms to federal requirements. Major

sources of air pollution are not typically small businesses.



### Effect 

### on small business: These rules should not have a significant economic impact on small business because major air pollution

sources do not generally meet the definition of a small business.

The Small Business Regulatory Coordinator may be contacted at SmaIiBusiness@dnr.state.wLus

, or by calling (608) 266-1959.

Environmental Analysis The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

### Fiscal Estimate Summary The proposed rules amend the existing air permitting rules to include a non-federal Classs air quality area. The Department already processes air permits which may impact existing Class I areas and expects no significant change in permit workload as a result of this rule.


### Agency contact person: 

### Steven. Dunn P.O. Box 7921 Madison, WI 53707 Phone: (608) 267-0566 Fax: (608) 267-0560 Email: Steven.Dunn@wisconsin.gov

Dated at Madison, Wisconsin 

## _,J...B.",IP LJ



### f_(..LJ--=2=-'=-;7-'

# ....:1~a)c.:.O _ STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES

By 

# /rk£///!, S'd'

Matthew J. Frank, Secretary

## Capital Newspapers Proof of Publication Affidavit

Ad #: 1581174 Price: $290.68 Ad ID: AM-71 0 Retain this portion for your records. Please do not remit payment until you receive your advertising invoice.

Mail 

### to: /r,.,..-/L-to

WI DEPT NATURAL R Sharon Reeve Attn: Sharon Reeve PO Box 7921 Madison. WI 53707-7921



### .**~--~** •..•.**~_._.**



### STATE OF WISCONSIN 

# RECEIVED

MAY 

# 7 2010 

# AIR 

# MANAGEMENT

Arlene Staff being duly sworn, doth depose and say that he (she) is an authorized representative of capital Newspapers, publishers of

Wisconsin State Journal

a newspaper, at Madison, the seat of govemment of said State, and that an advertisement of which the annexed is a true

copy, taken from said paper, was pUblished therein on May 5th, 2010 

# •

### Subscribed and swom 

### to before me on

unty, My Ccmmisslon expires May 24th, 2013



## -.

"

### ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD CREATING RULES

The Wisconsin Natural Resources Board adopts an order to create NR 400.02 (66m), 405.19 and 406.08(4) relating to permit requirements for Class I areas, and affecting small business.



### AM-12-10
Analysis Prepared by the Department of Natural Resources

1. Statute interpreted: The State Implementation Plan dev eloped under s. 285.11(6), Stats., is revised.
2. Statutory authority: ss. 227.11(2)(a) and 285.11(1) and (6) Stats.
3. Explanation of agency authority: Section 227.11(2)(a), Stats., gives state agen cies general rulemaking authority. Section 285.11(1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.11(6), Stats., requires the Department to develop a plan for abatement of air pollution in the State. The permitting program, in general, and these regulations specifically, is part of that plan.

These rules are based on federal rules as we ll as a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community (FCPC).

4. Related statute or rule: The FCPC Class I area was established as part of a Federal Implementation Plan approved by USEPA in an April 29, 2008 Federal Register Notice.
5. Plain language analysis: This rule is being proposed to amend portions of Department rules to incorporate the federal re-designation of ce rtain parcels of the Forest County Potawatomi Community Reservation as a non-Federal Class I area for the prevention of significant deterioration (PSD) of air quality, and to incl ude portions of a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community concerning the Class I area.

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to preserve air quality in Class I areas such as national parks and other areas meeting National Ambient Air Quality Standards. Class I areas are subject to lower allowable increases in ambient concentrations of particulate matte r, sulfur dioxide, and nitrogen dioxide.
6. Summary of, and comparison with, existing or proposed federal regulation: In an April 29, 2008, Federal Register Notice, the United State Environmental Prot ection Agency (USEPA) established the FCPC Class I area. The Depart ment and the FCPC have agreed to provisions impacting the FCPC Class I area that USEPA st ated, in the April 29, 2008, notice, need to be promulgated as part of the State’s Implementation Plan for controlling air pollution in order to be effective for federal purposes.
7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota): There are no non-federal Class I areas or non-federal Class I rules in any of these states.
8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen: The proposed rule is based on the federal re-designation of the FCPC Reservation lands to non-federal Class I, and the Final Agreement.



### 19. Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact report: An analysis of the effect of the proposed rules on small business was not performed since the propo sed rule only impacts major sources of air pollution in the State and conforms to federal requirements

. Major sources of air pollution are not typically small businesses.

10. Effect on small business: These rules should not have a significant economic impact on small business because major air pollution sources do not generally meet the definition of a small business.
11. Agency contact person: Steven Dunn, P.O. Box 7921, Madison, WI 53707, Telephone number: (608) 267-0566; e-mail addr ess: Steven.Dunn@wisconsin.gov



### SECTION 1. NR 400.02 (66m) is created to read:

NR 400.02 (66m) “Forest County Potawatomi Community Class I area” or “FCPC Class

I area” means those land parcels of the Forest County Potawatomi Reservation that are designated

as a non-federal Class I area by EPA under 40 CF R. 52.2581. The FCPC Class I area has a

geographic center, as determined by the de partment, at latitude 45.49978°N, longitude

88.64377°W.

SECTION 2. NR 405.19 is created to read:

NR 405.19 Forest County Potawato mi Class I area. (1) For any new major source or

major modification of an existing source, the Forest County Potawatomi Community shall have

the opportunity to present to the department, within no more than 75 days of receipt of a complete

permit application by the department, a demonstr ation that the emissions from the proposed new

major source or major modification would have an adverse impact on the established air quality

related values of the FCPC Class I area.

(2) New major sources or major modifications of existing sources wholly or partially

locating or located within a radius of 22.25 m iles from the geographic center of the FCPC Class I

area, as identified in s. NR 400.02 (66m), are subj ect to an increment analysis and limited to the

maximum allowable increase levels of a Class I area.

(3) New major sources or major modifications of existing sources locating or located



### 2

### wholly outside the area defined in sub. (2) are subject to an increment analysis and maximum

allowable increase levels of a Class II area.

Note: The relationship between the State of Wisconsin and the Forest County Potawatomi

Community with regard to the FCPC Class I area is established in a 1999 Class I Final Agreement. The

geographic center of the FCPC Class I area was dete rmined by finding the cen ter of a rectangle placed

around the outer most portions of the Class I area. The 22.25-mile radius was determined by adding 10

miles to the distance of the outermost portion of the FCPC Class I area from the geographic center of the

FCPC Class I area. A map developed by the Department and the Forest County Potawatomi Community

shows the approximate 22.25-mile radius for the FCPC Class I area. The Final Agreement, map, and

information on established air quality related values for the Class I area are available from the Department

upon request, or may be found on the Department’s web site.



### SECTION 3. NR 406.08 (4) is created to read:

NR 406.08 (4) (a) The Forest County Potawatomi Community shall have the opportunity

to review best available control technology (B ACT) or maximum achievable control technology

(MACT) determinations made by the department for any new or modified source that is either of

the following:

1. Wholly or partially locating or located within a radius of 22.25 miles from the

geographic center of the FCPC Class I area, as identified in s. NR 400.02 (66m)

. 2. Wholly or partially locating or located w ithin 62 miles of the FCPC Class I area, and

has a modeled impact exceeding 1 microgram per cubic meter averaged over any 24-hour period

for mercury or for any regulated pollutant that has an ambient air quality standard in s. NR

404.04.

(b) Disagreements between the departme nt and the Forest County Potawatomi

Community regarding BACT or MACT determinations are subject to dispute resolution but the

department shall act on a permit application according to time period requirements under ss.



### 3

### 285.61 and 285.62, Stats.

Note: The geographic center of the FCPC Class I ar ea, as identified in s. NR 400.02 (66m), was

determined by finding the center of a rectangle placed around the outer mo st portions of the Class I area.

The 22.25-mile radius was determined by adding 10 miles to the distance of the outermost portion of the

FCPC Class I area from the geographic center of the FCPC Class I area.

The Department has determined that any source who lly located outside of a circle with a radius of

74.25 miles from the geographic center of the FCPC Class I area is not within 62 miles of the FCPC Class I

area. The 74.25-mile radius was determined by adding 62 miles to the distance of the outermost portion of

the FCPC Class I area from the geogra phic center of the FCPC Class I area . It is the Department’s intent

that this circle be used as a screening tool for determ ining applicability of this subsection, and evidence that

a source is wholly outside of this circle will be accept ed as proof that the source is not within 62 miles of

the FCPC Class I area.

The relationship between the State of Wisconsin and the Forest County Potawatomi Community

with regard to the FCPC Class I area is established in a 1999 Class I Final Agreement. Dispute resolution

follows a process agreed to by the Department and the Forest County Potawatomi Community pursuant to

the Final Agreement.

The Final Agreement and maps showing the approximate 22.25-mile and 74.25-mile radii are

available from the Department upon request, or may be found on the Department’s web site.



### SECTION 4. EFFECTIVE DATE. This rule shall ta ke effect on the first day of the month

following publication in the Wisconsin administrative register as provided in s. 227.22 (2)

(intro.), Stats.



### 4

### 5 SECTION 5. BOARD ADOPTION. This rule w as approved and adopted by the State of

Wisconsin Natural Resources Board on August 11, 2010.

Dated at Madison, Wisconsin October 5, 2010.

STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES

By__________ /S/

___________________ Matthew J. Frank, Secretary

(SEAL)

### State of Wisconsin 

## CORRESPONDENCE/MEMORANDUM

DATE: July 12, 2010 FILE REF: 4533

TO: Natural Resources Board Members

FROM: Matt Frank, Secretary

SUBJECT: Background Memo for adoption of Order AM-12-10, 

### proposed rules affecting NR 405 and 406 pertaining to permit requirements relating to non-federal Class I areas.

Why is this rule being proposed?

This rule is being proposed to incorporate the fe deral re-designation of certain parcels of the Forest County Potawatomi Community (FCPC) Reservation as a non-Federal Class I area for the prevention of significant deterioration (PSD) of air quality, and to include portions of a 1999 Final Agreement reached between the state and the Forest County Potawatomi Community concerning the Class I area.

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to preserve air quality in Class I areas such as nationa l parks and other areas meeting the National Ambient Air Quality Standards. Class I areas are subject to lo wer allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen dioxide.

Summary of the Rule

The rule will:

• Establish the FCPC Class I area as a non-Federal Class I area

• Identify the reservation land parcels of the FCPC Class I area; and

• Identify the requirements for air permit applicants locating within the geographic areas covered in the Final Agreement.

How does this proposal affect existing policy?

The Department is required to keep the air permitting program consistent with federal requirements. This proposed rule change updates the permitting program rul es to include the FCPC Class I area that has been approved by US EPA.

Additionally, the rule proposal will aid in the implementation of the Final Agre ement reached between the State and the FCPC. In general, this Agreement re duces the number of sources that would have otherwise been required to do additional air quality analyses for the FCPC Class I area in comparison to a Federal Class I area. Thus, these proposed rules will implement existing policy reflected in the Final Agreement.

Hearing Synopsis

Public hearings on the proposed rule were held on Ju ne 7, 2010 in Madison and June 9, 2010 in Wausau. There were five attendees at the Madison hearing and four attendees at the hearing in Wausau. Comments on the rule were submitted by the Forest County Potawatomi Community (FCPC) at the Madison hearing.

### 2 One comment generally supporting rule and clean air was submitted at the Wausau hearing. The comments received from the FCPC were in support of the proposed rule.

Written comments on the proposed rule were also r eceived from the Wisconsin Paper Council (WPC) and Wisconsin Manufacturers and Commerce (WMC). These comments concerned the dimensions of the “22.25 mile” and “74.25 mile” affected facility ci rcles included in the proposed rule. Both WPC and WMC stated that each of the circles encompasses too la rge of an area and are not consistent with the “10 mile” radius and “62-mile” distance contained in the 1999 Final Agreement between the state and the FCPC. In response to these comments, a change has been made to the final rule to clarify that no facility located further than 62 miles from any portion of the FCPC Class I area will be subject to the requirements of the final rule. The Department is not proposing to change the dimensions of the “22.25 mile” circle because a drawing of an essentially identi cal circle is included in the Final Agreement. Therefore, the Department believes that the “22.25” mile circle included in the final rule is consistent with the terms of the Final Agreement.

Additionally, WPC commented that implementation of the Final Agreement could lead to the Department exceeding permit issuance timelines in State Statutes. No portion of the proposed rule allows the Department to exceed the permit issuance timelines c ontained in s. 285.61, WI Stats. (i.e. WI Act 118). Therefore, all statutory permit issuance deadlines will be met for permits for facilities affected by this rule and for facilities not affected by this rule.

Comments submitted by the Legislative Council Rul es Clearinghouse were of a non-substantive nature with the changes specifically suggested by the Clearinghouse included in the proposed rule.

Information on Environmental Analysis



### Under s. NR 150.03(3), Wis. Adm. Code, an environm ental analysis is not needed because this proposal is considered a Type III Action. A Type III Action is one that normally does not have the potential to cause significant environmental effects, normally does not affect energy usage and normally does not involve unresolved conflicts in the use of available resources.

Final Regulatory Flexibility Analysis


### These proposed rules apply only to larger sources of air pollution which are not, in general, small businesses. The Department believes it is unlikely any small business would be impacted by these proposed rules.Form 1100-001 

### NATURAL RESOURCES BOARD AGENDA ITEM Item No. ___ 3.A.10

_______ (R 9/07)

SUBJECT: Request adoption of Board Order AM-12-10, proposed rules affect ing chs. NR 400, 405, and 406 pertaining to permit requirements relating to non-federal Class I areas.

FOR: AUGUST 2010 BOARD MEETING

TO BE PRESENTED BY: Andy Stewart, Chief, Permits and St ationary Source Modeling Section

SUMMARY:

The proposed rules incorporate the federal designation of t he Forest County Potawatomi Community (FCPC) as a nonFederal Class I area for the prevention of significant deterioration (PSD) of air quality, and include portions of a Final Agreement reached between the state and the Forest County Potawatomi Community concerning the Class I area.

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to preserve air quality in Class I areas such as national parks and other areas m eeting the National Ambient Air Quality Standards. Class I areas are subject to lower allowable incr eases in ambient concentrations of particu late matter, sulfur dioxide, and nitrogen dioxide.

The FCPC non-Federal Class I area was established by US EPA at the request of the FCPC in 2008 (the original FCPC request for this desgination was filed in 1995). In 1999, the st ate signed a Final Agreement with the FCPC that resolved issues pertaining to implementation of a FCPC Cla ss I area and which details what the Department, FCPC, and potentially affected permit applicants need to do to evaluate the impact of new or m odified sources of air pollution that may potentially impact the FCPC Class I area. This Final Agreem ent took effect after federal establishment of the FCPC Class I area.

There is not expected to be any significant controversy over adopting these rules.

RECOMMENDATION: That the Board adopt Order AM-12-10.

LIST OF ATTACHED MATERIALS:

No Fiscal Estimate Required Yes Attached
No Environmental Assessment or Impact Statement Required Yes Attached
No Background Memo Yes Attached

APPROVED:

________ /S/

________________________________________________________________ _____ 7/09/2010

________________ Bureau Director, John H. Melby, Jr. Date

________ /S/

________________________________________________________________ _____ 7/12/2010

________________ Administrator, Al Shea Date

________ /S/

________________________________________________________________ _____ 7/22/2010

________________ Secretary, Matthew J. Frank Date

cc: Laurie Ross - AD/8 Linda Haddix - LS/8 Mike Scott - LS/8 R. Eckdale - AM/7